Contracts. (a) Schedule 4.14(a) sets forth a true, complete and accurate list, as of the date of this Agreement, of all of the following Contracts as amended to date which are currently in effect (collectively, “Material Contracts”): (i) all Contracts that require annual payments or expenses incurred by, or annual payments or income to, the Company Group of $200,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practices); (ii) all sales, advertising, agency, sales promotion, market research, marketing or similar Contracts; (iii) each Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company; (iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the Company or any Subsidiary is a party; (v) all Contracts relating to any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing); (vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder; (vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic area; (viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts; (ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee; (x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year; (xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater; (xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group); (xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract; (xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and (xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council. (b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of business, and (iv) enforceable by and against the Company Group and, to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of the date of this Agreement, any other party to a Material Contract, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto. (c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Sources: Business Combination Agreement (Roth CH Acquisition Co.)
Contracts. (a) Except as set forth on Schedule 4.14(a) sets forth a true4.10(a), complete and accurate list, as of no entity within the date of this Agreement, of all Group is bound by any of the following Contracts as amended to date which are currently in effect (collectively, each a “Material ContractsContract”):
(i) all Contracts any Contract that require annual payments grants a power of attorney, agency or expenses incurred by, or annual payments or income to, the Company Group of $200,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practices)similar authority to another Person;
(ii) all salesany Contract to lend or advance to, advertisinginvest in, agencyor guarantee any indebtedness, sales promotionobligation or performance of, market research, marketing or similar Contractsindemnify any Person;
(iii) each any Contract with any current employee of relating to the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment employment of any penaltyPerson or their compensation in connection with such employment, including with respect to profit sharing, deferred compensation, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the CompanyContract;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company any collective bargaining or partnership arrangement to which the Company similar labor agreement or any Subsidiary is a party;Contract
(v) all Contracts relating to any acquisitions Contract for the use or dispositions occupancy of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing)real property;
(vi) all IP Contractsany partnership, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunderjoint venture or strategic alliance agreement;
(vii) all Contracts limiting the freedom any agreement of surety, guarantee or indemnification with respect to which any member of the Company Group to compete in any line of business or industry, with any Person or in any geographic areais the obligor;
(viii) all Contracts providing for guarantees, any Contract (including any purchase orders pursuant to a master services agreement) pursuant to which the Group is entitled or where such Contract was entered into for the primary purpose expected to receive aggregate payments of providing indemnification, other than Standard Contracts$1,000,000 or more;
(ix) all Contracts with or pertaining to the Company Group any Contract pursuant to which any Affiliate of the Company Group is a party, other than any Contracts relating obligated or expected to such Affiliate’s status as a Company Securityholder make payments of $500,000 or employeemore;
(x) all Contracts relating to property any Contract limiting the freedom of such entity within the Group from engaging in any business including any non-competition agreement or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per yearother restrictive covenant agreement;
(xi) all Contracts creating or otherwise relating except for Permitted Liens, any Contract that contains a Restriction with respect to outstanding Indebtedness (other than intercompany Indebtedness) in any asset of such entity within the aggregate that are valued at $250,000 or greaterGroup;
(xii) all Contracts any Contract relating to Indebtedness, including the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group)Loan Agreements;
(xiii) all Contracts not cancellable by the Company Group any capitalized leases with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group an annual payment in excess of $200,000 per the terms of such contract50,000;
(xiv) other than the Equity Incentive Plan and Contracts entered any unexpired written bid or proposal to enter into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefitscontacts identified above that is of a nature that it could, compensation or payments (or as presented, be accepted by a third party and be thereby binding upon such entity within the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary AgreementGroup; and
(xv) all collective bargaining agreements any other Contract other than purchase orders in the ordinary course, which involves consideration or other agreement with expenditures or potential liability of such entity within the Group (A) in excess of $250,000, (B) involving performance over a labor unionperiod of more than twelve (12) months, labor organization or works council(C) not terminable upon thirty (30) days (or less) notice without payment by such entity within the Group.
(b) Each Except as set forth on Schedule 4.10(b) each Material Contract to which an entity within the Group is (i) a party is as to such entity, valid and binding agreement, (ii) in full force and effecteffect and there exists no breach by such entity, (iii) is on arm’s length terms and was entered into in the ordinary course of business, and (iv) enforceable by and against the Company Group andor, to the Company’s Knowledgeknowledge of the Sellers, any breach by the other party/parties thereto. A copy of each counterparty that is party thereto, subject, in the case of this clause Material Contract identified on Schedule 4.10(a) or (iv), b) has been delivered to the Enforceability Exceptions. Neither the Company Group norBuyer and such copy is true, to the Company’s Knowledgecorrect, as of the date of this Agreement, any other party to a Material Contract, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.
(c) The Company Group is in compliance and complete in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing respects. Each Contract listed on any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any IndebtednessSchedule hereto is on arm’s-length terms.
Appears in 1 contract
Contracts. (a) Schedule 4.14(aSection 4.12(a) of the Disclosure Letter sets forth a truelist of the following contracts (other than Plans) to which the Company or any Company Subsidiary is a party, complete and accurate listor by which any of their properties or assets are bound, as of the date of this Agreement, of all of the following Contracts as amended to date which are currently in effect Agreement (collectively, “Material Contracts”):
(i) all Contracts each master contract (excluding work orders, purchase orders, change orders and similar documentation) directly related to the Company’s obligations to perform a clinical trial on behalf of a sponsor which is still in effect and which contains ongoing obligations with any Material Customer;
(ii) any collective bargaining agreement or other contract with any labor union, labor organization or works council;
(iii) any contract entered into within the past thirty six (36) months relating to the acquisition by the Company or any Company Subsidiary of any other material business or Person, whether by merger, consolidation or other business combination or by the acquisition of the equity securities, or a material portion of the assets of, such business or Person, in each case, that require contains material obligations that are still in effect or for consideration in excess of $1,000,000, other than any such contract for the purchase of products in the ordinary course of business;
(iv) any contract entered into within the past thirty six (36) months providing for the sale, transfer or other disposition of any equity securities of the Company or any Company Subsidiary or any material assets of the Company or any Company Subsidiary, in each case, that contains material obligations that are still in effect or for consideration in excess of $1,000,000, other than any such contract for the sale of the Company’s or applicable Company Subsidiary’s products in the ordinary course of businesses;
(v) any contract under which the Company or any Company Subsidiary has incurred Indebtedness or any guarantee of any Indebtedness of any other Person;
(vi) any joint venture, product development, research and development or limited partnership agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any other Person;
(vii) any contract entered into since January 1, 2019 in the nature of a settlement agreement arising out of any actual or threatened Action asserted by any Person (including, without limitation, any Governmental Entity) providing for aggregate unsatisfied payment obligations in excess of $100,000 or other material non-monetary obligations that have not been satisfied;
(viii) any contract that (A) limits or purports to limit, in any material respect, the ability of the Company or any Company Subsidiary to compete in any line of business currently conducted by the Company or any Company Subsidiary in any geographical area or during any period of time, (B) provides for “most favored nations” terms or (C) establishes an exclusive sale or purchase obligation with respect to any product or service or any geographic location;
(ix) any contract pursuant to which (A) the Company or any Company Subsidiary is granted a license or similar grant of rights to Intellectual Property or (B) the Company or any Company Subsidiary grants to any Person a license or similar rights to Intellectual Property owned by the Company or any Company Subsidiary, in each case that is material to the Company and the Company Subsidiaries, taken as a whole, other than (1) licenses for generally commercially available un-customized software or other technology with aggregate annual license or other fees of less than $100,000, (2) agreements with customers of the Company or any Company Subsidiary to procure the Company’s or any Company Subsidiary’s products and services in the ordinary course of business, and (3) for clarity, nondisclosure agreements, employee invention assignment and confidentiality agreements;
(x) any Contract for capital expenditures involving individual or aggregate payments or expenses incurred by, or annual payments or income to, consideration of more than $150,000 under which there are material outstanding obligations;
(xi) any Contract under which the Company Group of $200,000 or more (any Company Subsidiary has material outstanding indemnification obligations to any Person, other than standard purchase and sale orders those entered into in the ordinary course of business consistent with past practices);
(ii) all sales, advertising, agency, sales promotion, market research, marketing or similar Contracts;
(iii) each Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligationpractice; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the Company or any Subsidiary is a party;
(v) all Contracts relating to any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;and
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group each master contract (excluding work orders, purchase orders, change orders and similar documentation) with any Material Supplier, other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable those that can be terminated without material penalty by the Company Group with no more than sixty or such Company Subsidiary upon ninety (6090) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works councilless.
(b) Each Copies of all written Material Contract is Contracts have been furnished or made available to Buyer, except for any such Material Contracts that are deemed by Seller to be competitively sensitive.
(i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of business, and (iv) enforceable by and against Neither the Company Group nor any Company Subsidiary or, to the Knowledge of Seller, any other party thereto is in material breach of or material default under any Material Contract and, to the Company’s KnowledgeKnowledge of Seller, each counterparty that is party theretono event has occurred that, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of the date of this Agreement, any other party to a Material Contract, is in material breach or default (whether with or without the passage of time or the giving of notice or both, would constitute such a material breach or material default; (ii) under neither the terms Company nor any Company Subsidiary has received a written notice of material breach or material default or any event that with notice or lapse of time, or both, would constitute a material breach or material default by either the Company or a Company Subsidiary of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.
; and (ciii) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing each of the transactions contemplated Material Contracts constitutes the valid and binding obligation of the Company or a Company Subsidiary, as applicable, and, to the Knowledge of Seller, each other party thereto, enforceable against the Company or a Company Subsidiary, as applicable, and, to the Knowledge of Seller, each other party thereto in accordance with its terms, except as such enforceability may be limited by this Agreement shall not cause bankruptcy, insolvency, reorganization, moratorium or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtednesssimilar laws affecting creditors’ right generally and by general equitable principles.
Appears in 1 contract
Contracts. (a) Schedule 4.14(a) sets Except as otherwise expressly set forth a true, complete and accurate list, as of the date of elsewhere in this Agreement, of including, Section 3.15 (insurance contracts) and Section 3.16 (Intellectual Property contracts), the Disclosure Schedule lists all Contracts of the following types to which the Company is a party or by which it is bound, except for any Contract that may be terminated by the Company on not more than 30 days' notice without any Liability or any Contract under which the executory obligation of the Company involves an amount of less than $50,000 (such excepted Contracts are referred to collectively as amended to date which are currently in effect (collectively, “Material "Minor Contracts”"):
(i) all Contracts that require annual payments with any present or expenses incurred byformer shareholder, director, officer, employee, partner or annual payments or income to, consultant of the Company Group of $200,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practices)Affiliate thereof;
(ii) all salesContracts for the future purchase of, advertisingor payment for, agencysupplies or products, sales promotionor for the lease of any Asset from or the performance of services by a third party, market researchthat involve an amount in excess of $50,000 in any individual case, marketing or similar Contractsany Contracts for the sale of products that involve an amount in excess of $150,000 with respect to any one supplier or other party;
(iii) each Contract with any current employee of the Company Group (A) which has continuing obligations for payment of Contracts to sell or supply products or to perform services that involve an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee amount in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or 50,000 in any Ancillary Agreement or as a result of a change of control of the Companyindividual case;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company to lease to or partnership arrangement to which the Company or operate for any Subsidiary is a partyother party any Asset that involve an amount in excess of $50,000 in any individual case;
(v) all Contracts relating to any acquisitions Any distributorship or dispositions of assets of value in excess of $100,000 by the Company Group (sales agency agreement or other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing)similar agreements;
(vi) all IP ContractsAny notes, separately identifying all such IP debentures, bonds, conditional sale agreements, equipment trust agreements, letter of credit agreements, reimbursement agreements, loan agreements or other Contracts under which for the Company is obligated to pay royalties thereunder and all such IP Contracts under which borrowing or lending of money, agreements or arrangements for a line of credit or for a guarantee of, or other undertaking in connection with, the Company is entitled to receive royalties thereunderindebtedness of any Person or other legal entity;
(vii) all Contracts limiting the freedom for any capital expenditure or leasehold improvement in excess of the Company Group to compete in any line of business or industry, with any Person or in any geographic area$50,000;
(viii) all Any Contracts providing under which any Encumbrances (except for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard ContractsPermitted Encumbrances) exists with respect to any Assets;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;the use of any portion of the Real Property by any third party; or
(x) all Any other Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) Minor Contracts and those described in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, through (iiix) in full force and effect, (iiiabove) is on arm’s length terms and was entered into not made in the ordinary course of business.
(b) The Company has delivered to the Buyer correct copies of all written Contracts (other than those that are Minor Contracts), together with all amendments thereto, and accurate descriptions of all material terms of all oral Contracts (iv) enforceable by and against other than those that are Minor Contracts), set forth or required to be set forth on the Company Group and, to the Company’s KnowledgeDisclosure Schedule, each counterparty that is party thereto, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of the date of this Agreement, any other party to a Material Contract, which Contracts is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect theretofull force and effect.
(c) The Company Group is not in Default under any Contract, which Default could result in a Liability on the part of the Company in excess of $50,000 in any individual case, and the aggregate Liabilities that could result from all such Defaults do not exceed $100,000. Neither the Seller nor the Company has received any communication from, or given any communication to, any other party indicating that the Company or such other party, as the case may be, is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default Default under any instruments or Contracts establishing or evidencing any IndebtednessContract.
Appears in 1 contract
Sources: Stock Purchase Agreement (Vlasic Foods International Inc)
Contracts. (a) Schedule 4.14(a) sets forth a true, complete and accurate list, as Section 3.16 of the date of this Agreement, of all Company Disclosure Letter lists each Contract of the following Contracts as amended types to date which are currently in effect (collectively, “Material Contracts”):the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets is bound:
(i) all Contracts any Contract that require annual payments limits the ability of the Company or expenses incurred byany of its Subsidiaries to compete in any line of business or with any Person or in any geographic area, or annual payments or income to, that restricts the right of the Company Group and its Subsidiaries (or, following the consummation of $200,000 the Merger and the other transactions contemplated by this Agreement, would limit the ability of Parent or more (any of its Subsidiaries, including the Surviving Company) to sell to or purchase from any Person or to hire any Person, or that grants the other than standard purchase and sale orders party or any third Person “most favored nation” status or any type of special discount rights except for any such provision that may be contained in the Company Leases entered into in the ordinary course of business consistent with past practices)practice;
(ii) all salesany Contract with respect to the formation, advertisingcreation, agencyoperation, sales promotion, market research, marketing management or control of a joint venture or other similar Contractsagreement or arrangement;
(iii) each any Contract with any current employee relating to Indebtedness (A) of the Company Group (A) which has continuing obligations for payment or any of its Subsidiaries having an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee outstanding principal amount in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law)200,000; or (CB) providing for secured by a payment or benefit upon the consummation Lien encumbering any of the transactions contemplated by Company Properties (such Contracts described in this Agreement or any Ancillary Agreement or as a result of a change of control of clause (B), the Company“Property Level Loan Documents”);
(iv) all Contracts creating a joint ventureany Contract requiring or involving (A) any pending or contemplated merger, strategic allianceconsolidation or similar business transaction, limited liability company or partnership arrangement to which (B) the Company acquisition or any Subsidiary is a party;
disposition, directly or indirectly (v) all Contracts relating to any acquisitions by merger or dispositions otherwise), of assets of value in excess of $100,000 by the Company Group assets, properties or capital stock or other equity interests (other than acquisitions or dispositions of immaterial assets or inventory in the ordinary course of business consistent with past practices practice);
(v) any Contract that by its terms calls for aggregate payment or receipt by the Company or any of its Subsidiaries under such Contract of more than $200,000 over the remaining term of such Contract, except for Contracts that are terminable for convenience by the Company or any of its Subsidiaries, as applicable, with a 30-day notice, the Property Level Loan Documents, Company Leases, and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing)Company Credit Agreement;
(vi) all IP Contracts, separately identifying all such IP Contracts under any Contract pursuant to which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunderor any of its Subsidiaries has continuing indemnification, guarantee, “earn-out” or other contingent payment obligations;
(vii) all Contracts limiting the freedom of any Contract pursuant to which the Company Group grants or receives a license to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnificationIntellectual Property, other than Standard Contracts;
(ixA) all Contracts with or pertaining non-exclusive, object code licenses to the Company Group to which any Affiliate of the Company Group is a partycommercially available, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreementoff-the-shelf software, (iiB) in full force and effect, (iii) is on arm’s length terms and was entered into non-exclusive licenses granted in the ordinary course of business, and (ivC) enforceable by and against Contracts wherein the license to Intellectual Property is ancillary to the primary purpose of the Contract;
(viii) any Contract that obligates the Company Group or any of its Subsidiaries to make any capital commitment, loan or expenditure in an amount in excess of $200,000;
(ix) any Contract not entered into in the ordinary course of business between the Company or any of its Subsidiaries, on the one hand, and any Affiliate thereof other than any Subsidiary of the Company;
(x) any Contract with any Governmental Entity;
(xi) any Collective Bargaining Agreement; or
(xii) any Property Management Agreement. Each contract set forth in Section 3.16(a) of the Company Disclosure Letter, together with (1) the Contracts referred to in Section 3.16(c), and (2) the Company Leases, are referred to herein collectively as “Material Contracts” and each, individually, as a “Material Contract.”
(b) For purposes of this Section 3.18(b), no Company Leases shall be a Material Contract (Company Leases being the subject of Section 3.18).
(i) Each Material Contract is valid and binding on the Company and any of its Subsidiaries to the extent such Subsidiary is a party thereto, as applicable, and to the Knowledge of the Company, each other party thereto, and is in full force and effect and enforceable in accordance with its terms;
(ii) The Company and each of its Subsidiaries, and, to the Knowledge of the Company’s Knowledge, each counterparty that is other party thereto, subject, in has performed all material obligations required to be performed by it under each Material Contract; and
(iii) There is no default under any Material Contract by the case Company or any of this clause (iv)its Subsidiaries or, to the Enforceability Exceptions. Neither the Company Group nor, to Knowledge of the Company’s Knowledge, as of the date of this Agreement, any other party to a Material Contractthereto, is in material breach and no event or default (whether with condition has occurred that constitutes, or, after notice or without the passage lapse of time or both, would constitute, a default on the giving part of notice the Company or both) any of its Subsidiaries or, to the Knowledge of the Company, any other party thereto under the terms of any such Material Contract, nor has the Company or any of its Subsidiaries received any notice of any such default, event or condition. The Company Group has not assignedmade available to Parent true and complete copies of all Material Contracts, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect including all amendments thereto.
(c) The Company Group is in compliance in all material respects with all covenantsAll Contracts, including all financial covenantsamendments thereto, in all notesrequired to be filed as an exhibit to any Company SEC Documents filed over the past three years, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing pursuant to the Exchange Act of the transactions contemplated type described in Item 601(b)(10) of Regulation S-K promulgated by this Agreement shall the SEC have been filed, except as would not cause or result in an event of default under any instruments or the Company’s ineligibility to use Form S-3 promulgated by the SEC. All such filed Contracts establishing or evidencing any Indebtednessshall be deemed to have been made available to Parent.
Appears in 1 contract
Contracts. (a) Schedule 4.14(a) sets forth a true, complete and accurate list, as Section 3.21 of the date Company Disclosure Schedule contains a true and complete list of this Agreement, of all each of the following Contracts as amended contracts, agreements or other arrangements to date which are currently in effect the Company or HIP, LLC is a party or by which any of their Assets and Properties is bound (collectivelyand, “Material Contracts”to the extent oral, accurately describes the terms of such contracts, agreements and arrangements):
(i) all All Contracts that require annual payments for the provisions of goods or expenses incurred by, or annual payments or income to, services of the Company Group or HIP, LLC which involve the receipt of an amount in excess of $200,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practices)50,000 during any calendar year;
(ii) all sales, advertising, agency, sales promotion, market research, marketing collective bargaining or similar Contractslabor agreements;
(iii) each Contract with any current employee of all Contracts for the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment employment of any penaltyofficer, severance employee, manager or other obligation; (B) providing for severance Person or post-termination payments entity on a full time, part time, consulting or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Companybasis and all independent contractor agreements;
(iv) all Contracts creating loan agreements, indentures, debentures, notes or letters of credit relating to the borrowing of money or to mortgaging, pledging or otherwise placing a joint venture, strategic alliance, limited liability company lien on any material asset or partnership arrangement to which material group of assets of the Company or any Subsidiary is a partyHIP, LLC;
(v) all Contracts relating each written warranty, guaranty, or other similar undertaking with respect to any acquisitions or dispositions of assets of value in excess of $100,000 contractual performance extended by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing)HIP, LLC;
(vi) all IP Contracts, separately identifying all such IP Contracts leases or agreements under which the Company or HIP, LLC is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunderlessee or lessor of, or holds, or operates, any property, real or personal, owned by any other party;
(vii) all Contracts limiting commitments, contracts, sales contracts, purchase orders, mortgage agreements or groups of related agreements with the freedom same party or any group or affiliated parties which require or may in the future require payment of any consideration by the Company Group to compete or HIP, LLC which involve the payment of an amount in excess of $25,000 during any line of business or industry, with any Person or in any geographic area;calendar year; Exhibit 10.31
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, license agreements (other than Standard Contracts"off-the-shelf" or shrink wrap license agreements), distribution agreements or any other agreements involving any of the Intellectual Property of the Company or HIP, LLC, including agreements with current and former employees, consultants or contractors regarding the appropriation or the non-disclosure of any such Intellectual Property;
(ix) all Contracts with each joint venture partnership and other Contract (however named) involving a sharing of profits, losses, costs or pertaining to liabilities by the Company Group to which or HIP, LLC with any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employeePerson;
(x) all Contracts relating any Contract for payments to property or assets (whether real or personal, tangible or intangible) in which by any Person by the Company Group holds a leasehold interest (including the Lease) and which involve or HIP, LLC based on sales, purchases or profits, other than direct payments to the lessor thereunder in excess of $200,000 per yearfor goods or services;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate each power of attorney that are valued at $250,000 or greateris currently effective and outstanding;
(xii) all Contracts relating to each Contract entered into other than in the voting Ordinary Course of Business that contains or control of the equity interests of provides for an express undertaking by the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group)HIP, LLC to be responsible for consequential damages;
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group each Contract for capital expenditures in excess of $200,000 per the terms of such contract10,000;
(xiv) all subscription or other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject agreements related to the Equity Incentive Plan, all Contracts under which any equity ownership of the benefitsCompany or HIP, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; andLLC;
(xv) all collective bargaining Contracts or commitments that in any way restrict the Company from carrying on the Business of the Company anywhere in the world;
(xvi) all other Contracts and agreements that (A) involve the payment or other agreement with potential payment in excess of $25,000 during any calendar year, pursuant to the terms of any such Contract or agreement, by the Company or HIP, LLC and (B) cannot be terminated within 30 days after giving notice of termination without resulting in any cost or penalty to the Company or HIP, LLC;
(xvii) all contracts or commitments that in any way grants a labor unionthird party a right of first refusal for the purchase of any portion of the Company or HIP, labor organization LLC or works councilany of their Assets or Properties; and
(xviii) each amendment, supplement, and modification (whether oral or written) in respect to any of the foregoing.
(b) A correct and complete copy of each Contract disclosed in the Company Disclosure Schedule (the "Material Contracts") has been previously provided to Parent. Each Material Contract is (i) in full force and effect and constitutes a legal, valid and binding agreement, enforceable in accordance with its terms (except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors' rights generally and (ii) in full force and effectas limited by laws relating to the availability of specific performance, (iii) is on arm’s length terms and was entered into in injunctive relief or other equitable remedies), of the ordinary course of businessCompany or HIP, LLC, as appropriate, and (iv) enforceable by to the Knowledge of the Company, the other parties thereto; and against the Company Group andor HIP, to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s KnowledgeExhibit 10.31 LLC, as appropriate, have performed in all material respects all of the date their required obligations under, and are not in violation or breach of this Agreement, any other party to a Material Contract, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of under, any such Material Contract. The To the Knowledge of the Company, the other parties to any such Material Contracts are not in violation or breach of or default under any such Material Contract. To the Knowledge of the Company, none of the present or former employees, officers, directors or Shareholders of the Company Group has not assignedor the present or former employees, delegated officers, managers or otherwise transferred members of HIP, LLC is a party to any oral or written contract or agreement prohibiting any of its rights them from freely competing with other parties or obligations engaging in the Business of the Company as now operated. No event has occurred or circumstance exists that (with or without notice or the lapse of time) may contravene, conflict with, or result in a violation or breach of, or give the Company, HIP, LLC or any other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, termination, or modify, any Material Contract. Neither the Company nor HIP, LLC has given to or received from any other Person any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under any Material Contract. There are no renegotiations of, attempts to renegotiate or outstanding rights to renegotiate any provisions of any Material Contract of the Company or granted HIP, LLC relating to any power material amounts paid or payable to the Company or HIP, LLC under current or complete Contract with any Person and, to the Knowledge of attorney with respect thereto.
(c) The Company Group is in compliance in all material respects with all covenantsthe Company, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtednessno such Person has made written demand for such renegotiation. The consummation and closing Material Contracts relating to the sale of services of the transactions contemplated by this Agreement shall not cause Company or result HIP, LLC have been entered into in an event the Ordinary Course of default under Business and have been entered into without the commission of any instruments act alone or Contracts establishing in concert with any other Person, or evidencing any Indebtednessconsideration having been paid or promised, that would be in violation of any Legal Requirement.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Crdentia Corp)
Contracts. (a) Schedule 4.14(a) sets forth a true, complete and accurate listSection 3.16 of the Company Disclosure Letter lists, as of the date of this Agreementhereof, of all each of the following types of Contracts as amended to date which are currently in effect (collectively, “Material Contracts”):the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets is bound:
(i) all Contracts any Contract that require annual payments or expenses incurred by, or annual payments or income to, would be required to be filed by the Company Group as a “material contract” pursuant to Item 601(b)(10) of $200,000 Regulation S-K under the Securities Act or more (other than standard purchase and sale orders entered into in disclosed by the ordinary course of business consistent with past practices)Company on a Current Report on Form 8-K;
(ii) all sales, advertising, agency, sales promotion, market research, marketing or similar Contracts;
(iii) each any Contract with any current employee that limits the ability of the Company Group or any of its Subsidiaries (A) which has continuing obligations for payment of an annual compensation of at least $200,000or, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon following the consummation of the transactions contemplated by this Agreement Agreement, would limit the ability of Parent or any Ancillary Agreement of its Subsidiaries, including the Surviving Corporation) to compete in any line of business or as a result with any Person or in any geographic area, or that restricts the right of the Company and its Subsidiaries (or, following the consummation of the transactions contemplated by this Agreement, would limit the ability of Parent or any of its Subsidiaries, including the Surviving Corporation) to sell to or purchase from any Person or to hire any Person, or that grants the other party or any third Person “most favored nation” status or any type of special discount rights;
(iii) any Contract with respect to the formation, creation, operation, management or control of a change of control of the Companyjoint venture, partnership, limited liability or other similar agreement or arrangement;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement any Contract relating to which the Company or any Subsidiary is a partyIndebtedness and having an outstanding principal amount in excess of $25,000;
(v) all Contracts relating to any acquisitions Contract involving the acquisition or dispositions disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests for aggregate consideration (in one or a series of value in excess transactions) under such Contract of $100,000 by the Company Group 25,000 or more (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoingpractice);
(vi) all IP Contractsany Contract involving sportsbook leases or customer care software license agreements, separately identifying all such IP Contracts under which and any other Contract that by its terms calls for aggregate payment or receipt by the Company is obligated to pay royalties thereunder and all its Subsidiaries under such IP Contracts under which Contract of more than $25,000 over the Company is entitled to receive royalties thereunderremaining term of such Contract;
(vii) all Contracts limiting the freedom of any Contract pursuant to which the Company Group to compete or any of its Subsidiaries has continuing indemnification, guarantee, “earn-out” or other contingent payment obligations, in any line each case that could result in payments in excess of business or industry, with any Person or in any geographic area$25,000;
(viii) all Contracts providing any Contract that provides for guaranteesany confidentiality, standstill or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contractssimilar obligations;
(ix) all Contracts with or pertaining to any Contract that obligates the Company Group or any of its Subsidiaries to which make any Affiliate capital commitment, loan or expenditure in an amount in excess of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee$25,000;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) any Contract not entered into in which the ordinary course of business between the Company Group holds a leasehold interest (including or any of its Subsidiaries, on the Lease) one hand, and which involve payments to any Affiliate thereof other than any Subsidiary of the lessor thereunder in excess of $200,000 per yearCompany;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;any Contract with any Governmental Entity; or
(xii) all Contracts any Contract that requires a consent to or otherwise contains a provision relating to the voting a “change of control,” or control of the equity interests of the Company Group that would or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty reasonably be expected to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by prevent the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or . Each contract of the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; andtype described in clauses (i) through (xiii) is referred to herein as a “Material Contract.”
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(bi) Each Material Contract is (i) a valid and binding agreementon the Company or one of its Subsidiaries, as applicable, and to the knowledge of the Company, each other party thereto, and is in full force and effect and enforceable in accordance with its terms, except (iix) where the failure to be valid, binding, enforceable and in full force and effect, (iii) is on arm’s length terms and was entered into individually or in the ordinary course aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect or (y) to the extent that enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or similar Laws affecting the enforcement of business, and creditors’ rights generally or by general principles of equity; (ivii) enforceable by and against the Company Group and each of its Subsidiaries, and, to the knowledge of the Company’s Knowledge, each counterparty that is other party thereto, subjecthas performed all obligations required to be performed by it under each Material Contract, except where any noncompliance, individually or in the case aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect; and (iii) there is no default under any Material Contract by the Company or any of this clause (iv)its Subsidiaries or, to the Enforceability Exceptions. Neither the Company Group nor, to knowledge of the Company’s Knowledge, as of the date of this Agreement, any other party to a Material Contractthereto, is in material breach and no event or default (whether with condition has occurred that constitutes, or, after notice or without the passage lapse of time or both, would constitute, a default on the giving part of notice the Company or both) any of its Subsidiaries or, to the knowledge of the Company, any other party thereto under the terms of any such Material Contract, nor has the Company or any of its Subsidiaries received any written notice of any such default, event or condition, except where any such default, event or condition, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. The Company Group has not assigned, delegated or otherwise transferred any (i) made available to Parent true and complete copies of its rights or obligations under any all written Material Contract or granted any power of attorney with respect thereto.
(c) The Company Group is in compliance in all material respects with all covenantsContracts, including all financial covenantsany amendments thereto, and (ii) included an accurate and complete description in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing Section 3.16 of the transactions contemplated by this Agreement shall not cause or result in an event Company Disclosure Letter of default under any instruments or Contracts establishing or evidencing any Indebtednessthe substantive provisions of all oral Material Contracts.
Appears in 1 contract
Contracts. (a) Section 3.16(a) of the Company Disclosure Schedule 4.14(a) sets forth a list as of the date of this Agreement of each Contract to which either the Company or any of its Subsidiaries is a party or bound other than each Contract solely among the Company and its wholly owned Subsidiaries that:
(i) provides that any of the Company or its Subsidiaries will not compete with any other Person in any material respect, or which grants “most favored nation” or similar covenants or protections to the counterparty to such Contract (or that, following the Merger, would by its terms apply such limits or restrictions to Parent or its Affiliates);
(ii) purports to limit in any material respect either the type of business in which the Company or its Subsidiaries may engage or the manner or locations in which any of them may so engage in any business (including in respect of soliciting clients or customers);
(iii) requires the Company or its Subsidiaries (or, after the Effective Time, Parent or its Subsidiaries) to deal exclusively with any Person or group of related Persons;
(iv) relates to the formation, creation, operation, management or control of any partnership, joint venture, strategic alliance or other similar collaboration, including as it relates to any Minority Investment, other than any such Contract solely between the Company and its wholly owned Subsidiaries or among the Company’s wholly owned Subsidiaries;
(v) is a Real Estate Lease;
(vi) contains a put, call, right of first refusal or offer, or similar right pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any Person or any material assets, rights of properties;
(vii) relates to any labor union, labor organization or works council or similar organization (including any collective bargaining agreement);
(viii) relates to (x) any executive officer or director of the Company, or (y) any Affiliates or Persons holding three percent or more of the outstanding Shares, in each case other than a Company Plan;
(ix) under which the Company and its Subsidiaries (x) have made or expect to make aggregate payments in excess of $1,000,000 during the fiscal year ended December 31, 2022 or in any subsequent year, or (y) have received or expect to receive aggregate payments in excess of $1,000,000 during the fiscal year ended December 31, 2022 or in any subsequent year;
(x) is a settlement, conciliation or similar Contract arising out of a Proceeding or threatened Proceeding (x) that materially restricts or imposes any material obligation on the Company or its Subsidiaries or materially disrupts the business of the Company or any of its Subsidiaries as currently conducted, or (y) that would require the Company or any of its Subsidiaries to pay more than $1,000,000 in the aggregate following the date of this Agreement, in connection with a Proceeding;
(xi) relates to indebtedness for borrowed money (other than intercompany indebtedness owed by the Company or any wholly owned Subsidiary to any other wholly owned Subsidiary, or by any wholly owned Subsidiary to the Company) of the Company or any of its Subsidiaries having an outstanding and/or committed principal amount in excess of $10,000,000;
(xii) provides for the acquisition or disposition of any assets (other than acquisitions or dispositions of sale in the ordinary course of business) or business (whether by merger, sale of shares, sale of assets or otherwise) or capital stock or other equity interests of any Person, (A) which the Company or its Subsidiaries has entered into in the past three years or (B) that has continuing liability, indemnification, guarantee, “earn-out” or other contingent payment obligations on the Company or its Subsidiaries, in each case, other than solely as among the Company and its wholly owned Subsidiaries;
(xiii) was entered into with a Significant Supplier or Significant Customer;
(xiv) any other Contract to which the Company or any of its Subsidiaries is a party (other than any other Material Contract), if a termination of such Contract reasonably would be expected to have or result in a Material Adverse Effect; and
(xv) (i) pursuant to which any Person grants to the Company or any of its Subsidiaries any license, covenant (including covenants-not-to-sue, covenants-to-sue-last or otherwise), release, immunity or other use right with respect to any Intellectual Property rights material to the business of the Company and its Subsidiaries (other than (A) licenses for off-the-shelf or other generally commercially available Software with an annual aggregate or one-time cost of not more than $100,000, (B) licenses to Open Source Software, (C) confidentiality or non-disclosure Contracts, and (D) Contracts containing non-exclusive licenses granted in the ordinary course of business, where such licenses are incidental to the transactions contemplated by such Contracts); or (ii) pursuant to which the Company or any of its Subsidiaries grants to any third party any license, covenant (including covenants-not-to-sue, covenants-to-sue-last or otherwise), release, immunity or any other use right with respect to any material Company IP (other than (A) confidentiality or non-disclosure Contracts, (B) Contracts containing non-exclusive licenses of Company IP granted in the ordinary course of business and (C) Contracts containing non-exclusive licenses, where such licenses are incidental to the transactions contemplated by such Contracts (such Contracts required to be listed pursuant to clauses (i) - (xv) of this Section 3.16(a), collectively, the “Material Contracts”).
(b) A true, correct and complete and accurate listcopy of each Material Contract, as amended as of the date of this Agreement, of including all of attachments, schedules and exhibits thereto, has been made available to Parent. Except as would not reasonably be expected to be material to the following Contracts Company and its Subsidiaries, taken as amended to date which are currently in effect (collectivelya whole, “Material Contracts”):
(i) all Contracts that require annual payments or expenses incurred byeach of the Material Contracts, or annual payments or income to, is valid and binding on the Company Group of $200,000 or more (other than standard purchase and sale orders entered into in its Subsidiaries, as the ordinary course of business consistent with past practices);
(ii) all salescase may be and, advertising, agency, sales promotion, market research, marketing or similar Contracts;
(iii) each Contract with any current employee of to the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control Knowledge of the Company;
(iv) all Contracts creating a joint venture, strategic allianceeach other party thereto, limited liability company or partnership arrangement and, to which the Company or any Subsidiary is a party;
(v) all Contracts relating to any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom Knowledge of the Company Group to compete in any line of business or industryCompany, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, or (iiiii) is on arm’s length terms and was entered into in neither the ordinary course Company nor any of businessits Subsidiaries has received or delivered written notice of breach of or default under any Material Contract, and (iv) enforceable by and against neither the Company Group and, to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case nor any of this clause (iv), to the Enforceability Exceptions. Neither the Company Group its Subsidiaries nor, to the Company’s Knowledge, as Knowledge of the date of this AgreementCompany, any other party to a is in breach of or in default under any Material Contract, is in material breach or default (whether and no event has occurred that, with or without the passage lapse of time or the giving of notice or both) under , would constitute a default thereunder by the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.
(c) The Company Group is in compliance in all material respects with all covenantsSubsidiaries or, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing to the Knowledge of the transactions contemplated by this Agreement shall not cause or result in an event of default under Company, any instruments or Contracts establishing or evidencing any Indebtednessother party.
Appears in 1 contract
Contracts. (a) Set forth in Section 3.14(a) of the Company Disclosure Schedule 4.14(a) sets forth is a true, complete and accurate list, as of the date of this Agreement, of all (i) each Contract that would be required to be filed as an exhibit to a Registration Statement on Form S-1 under the Securities Act or an Annual Report on Form 10-K under the Exchange Act if such registration statement or report was filed by the Company with the SEC on the date of this Agreement, and (ii) each of the following Contracts as amended to date which are currently in effect (collectively, “Material Contracts”):
(i) all Contracts that require annual payments or expenses incurred by, or annual payments or income to, the Company Group or any of its Subsidiaries is a party or otherwise bound: (A) any Contract that contains a non-competition provision or that otherwise purports to limit, curtail or restrict the ability of the Company or any of its Subsidiaries (or, after the Effective Time, Parent or any of its Affiliates) to compete in any geographic area or line of business or restrict the Persons to whom the Company or any of its Subsidiaries may sell products or deliver services, (B) any Contract that grants any third party “most favored nation” status or the exclusive right to deal with the Company or any of its Subsidiaries that involves total consideration in excess of $200,000 2,500,000 annually, (C) any partnership or more joint venture agreement, (other than standard purchase and sale orders entered into D) any Contract not in the ordinary course of business consistent with past practices);
practice for the acquisition, sale or lease of properties or assets (iiby merger, purchase or sale of stock or assets or otherwise) all salesentered into since July 31, advertising2007, agency, sales promotion, market research, marketing or similar Contracts;
(iiiE) each any Contract with any current employee of the Company Group (Ax) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee Governmental Authority that involves total consideration in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); 1,000,000 annually or (Cy) providing for a payment director or benefit upon the consummation officer of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the Company or any Subsidiary is of its Subsidiaries or any Affiliate of the Company, (F) any loan or credit agreement, mortgage, indenture, note or other Contract or instrument evidencing Indebtedness of the Company or any of its Subsidiaries, in each case of greater than $100,000 individually or $500,000 in the aggregate for all such Contracts, (G) any financial derivatives master agreement or confirmation, or futures account opening agreements and/or brokerage statements, evidencing financial hedging or similar trading activities, (H) any voting agreement or registration rights agreement, (I) any mortgage, pledge, security agreement, deed of trust or other Contract granting a party;
(v) all Contracts relating to Lien on any acquisitions property or dispositions of assets of value the Company or any of its Subsidiaries that involves total consideration in excess of $100,000 by the Company Group 25,000, (J) any (1) customer or client Contract that involves total consideration in excess of $2,500,000 annually (other than acquisitions purchase orders issued (or dispositions received) for the purchase or sale of inventory goods in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Leasepractice) and which involve payments to the lessor thereunder (2) supply Contract that involves total consideration in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness 500,000 annually (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments purchase orders issued (or received) for the vesting thereof) will be increased purchase or accelerated by the consummation sale of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into goods in the ordinary course of businessbusiness consistent with past practice), (K) any collective bargaining agreement, (L) any “standstill” or similar agreement, (M) any Contract that restricts or otherwise limits the payment of dividends or other distributions on equity securities, (N) any to the extent material to the business or financial condition of the Company and its Subsidiaries, taken as a whole, (1) any indemnification Contract, (2) any sales representative or distribution Contract or (3) any Contract granting a right of first refusal or first negotiation, (O) any Contract pursuant to which the Company or any of its Subsidiaries is granted a license to use any Company Intellectual Property from third parties (excluding Contracts pertaining to commercially available Software that is licensed to the Company or the relevant Subsidiary for a total license fee or royalty of less than $100,000), (P) any Contract pursuant to which the Company leases, licenses or otherwise obtains the right to use any real property and such Contract involves annual base rental payments in excess of $250,000 and (ivQ) enforceable by any commitment or agreement to enter into any of the foregoing (the Contracts and against other documents required to be listed on Section 3.14(a) of the Company Group andDisclosure Schedule, together with any and all other Contracts of such type entered into in accordance with Section 5.2, each a “Company Material Contract” ). The Company has prior to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case date of this clause (iv), Agreement made available to the Enforceability Exceptions. Neither the Parent correct and complete copies of each Company Group nor, to the Company’s Knowledge, Material Contract in existence as of the date of this Agreement, together with any other party to a Material Contract, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect and all amendments and supplements thereto.
(cb) The Except as set forth in Section 3.14(b)(1) of the Company Group Disclosure Schedule and with such exceptions as, individually or in the aggregate, have not had and are not reasonably likely to have a Company Material Adverse Effect: (i) each Contract to which the Company or any of its Subsidiaries is a party (collectively, the “Company Contracts” ) is valid, binding and in full force and effect and is enforceable in accordance with its terms by the Company and its Subsidiaries party thereto, subject to the Bankruptcy and Equity Exception; (ii) neither the Company nor any of its Subsidiaries is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments Company Contract, nor does any condition exist that, with notice or Contracts establishing lapse of time or evidencing both, would constitute a default thereunder by the Company and its Subsidiaries party thereto; (iii) to the Knowledge of the Company, no other party to any Indebtedness.Company Contract is in default thereunder, nor does any condition exist that with notice or lapse of time or both would constitute a default by any such other party thereunder; and (iv) neither the Company nor any of its Subsidiaries has received any notice of termination or cancellation under any Company Contract, received any notice of breach or default under any Company Contract which breach or default has not been cured, or granted to any third party any rights, adverse or otherwise, that would constitute a breach of any Company Contract. Except as set forth in Section 3.14(b)(2) of the Company Disclosure Schedule, (i) no approval, consent or waiver of any Person is needed in order that any Company Material Contract continue in full force and effect
Appears in 1 contract
Sources: Merger Agreement (Dynamex Inc)
Contracts. (a) Schedule 4.14(aSection 5.15(a) of the Company Disclosure Letter sets forth a true, complete and accurate list, correct list as of the date of this Agreement, and the Company has, prior to the date of all this Agreement, made available to Holdco true, complete and correct copies of each of the following Contracts as amended contracts to date which are currently the Company or any Company Subsidiary is party (but shall not include any Company Benefit Plan listed on Section 5.16(a) of the Company Disclosure Letter or any purchase orders received or issued by the Company or any of the Company Subsidiaries in effect (collectively, “Material Contracts”the ordinary course of the Company’s business consistent with past practice):
(i) all Contracts any Contract that require annual payments is or expenses incurred bywould be required to be filed by the Company as a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the SEC);
(ii) any Contract that (A) limits, curtails or restricts the ability of the Company or any Company Subsidiary to compete or conduct activities in any therapeutic or geographic area or line of business or with any Person (or that, following the Merger, would by its terms apply such limits or other restrictions to Holdco or its Subsidiaries), (B) grants the other party or any third Person “most favored nation” or similar status, or annual any type of special discount rights or (C) contains any right of exclusivity or minimum purchase arrangement in favor of the other parties thereto; Table of Contents
(iii) settlement, non-prosecution or similar agreements involving payments in excess of $2,500,000 or income to, involving future performance or restraints on action by the Company Group or any of the Company Subsidiaries;
(iv) any joint venture, partnership, strategic alliance or other similar Contract or any Contract that relates to the formation, creation, governance, economics or control of any such joint venture, partnership or other similar arrangement;
(v) any Contract that contains any right of first refusal, first notice or first negotiation or similar right with respect to the sale of any material portion of the equity or assets or business of the Company or any of the Company Subsidiaries;
(vi) any Contract relating to the acquisition or disposition of any material business or material assets of any Person (whether by merger, sale of stock or assets or otherwise), which acquisition or disposition is not yet complete or where such Contract contains continuing material obligations or liabilities of the Company or any of the Company Subsidiaries;
(vii) any Contract that has continuing indemnification, guarantee, “earn-out” or other contingent payment obligations, in each case that could result in payments in excess of $200,000 500,000 individually or more $2,500,000 in the aggregate, other than customary indemnification obligations included in contracts for the sale of the Company’s products entered into in the ordinary course of business;
(viii) any Contract with any Governmental Entity;
(ix) any Contract evidencing or relating to Indebtedness (other than standard purchase intercompany loans) in excess of $1,500,000;
(x) any Contract that (A) obligates the Company or any Company Subsidiary to make a loan or capital contribution to, or investment in excess of $1,500,000 in any Person other than loans to any Company Subsidiary and sale orders entered into advances to employees in the ordinary course of business consistent with past practices);
(ii) all salespractice, advertising, agency, sales promotion, market research, marketing or similar Contracts;
(iii) each Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance obligates the Company or post-termination any Company Subsidiary to provide a guarantee that would reasonably be expected to result in payments or benefits to such employee in excess of $60,000 (1,500,000 other than COBRA obligations guarantees by the Company or similar requirements under applicable local Law); or any Company Subsidiary of another Company Subsidiary’s obligations, (C) providing for contains a payment put, call or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement similar right pursuant to which the Company or any Company Subsidiary is a party;
(v) all Contracts relating could be required to purchase or sell, as applicable, any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations equity interests of any party thereto ongoing);
Person or assets that have a fair market value or purchase price of more than $1,500,000, or (viD) all IP Contracts, separately identifying all such IP Contracts under contains any standstill or similar agreement pursuant to which the Company is obligated or any Company Subsidiary has agreed not to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom acquire assets or securities of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per yearanother Person;
(xi) all Contracts creating any mortgage, pledge, security agreement, deed of trust or otherwise relating to outstanding Indebtedness other Contract granting an Encumbrance (other than intercompany Indebtednessa Permitted Encumbrance) in the aggregate that are valued at $250,000 on any material property or greater;assets; Table of Contents
(xii) all Contracts relating to the voting or control of the equity interests any lease of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group)Leased Property;
(xiii) all Contracts not cancellable any Contract with any Affiliate that would be required to be disclosed by Item 404(a) of Regulation S-K under the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contractExchange Act;
(xiv) with any customer of the Company or any Company Subsidiary, including distributors, or any other Person pursuant to which the Company and the Company Subsidiaries reasonably expect to receive aggregate payments in excess of $2,500,000 annually during the last three fiscal years other than purchase orders issued in the Equity Incentive Plan and Contracts entered into in connection ordinary course;
(xv) with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any supplier of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement Company or any Ancillary AgreementCompany Subsidiary or any other Person pursuant to which the Company and the Company Subsidiaries reasonably expect to make aggregate payments in excess of $2,500,000 annually during the last three fiscal years other than purchase orders issued in the ordinary course;
(xvi) any Contract the termination or breach of which, or the amount or value thereof will be calculated on the basis failure to obtain consent in respect of, the transactions contemplated by this Agreement or any Ancillary Agreementwould have a Company Material Adverse Effect; and
(xvxvii) all collective bargaining agreements any Contract that (A) otherwise does not fit within any of the descriptions set forth in the foregoing clauses (i) through (xiv) above, and (B) by its terms, calls for aggregate payment or receipt by the Company and Company Subsidiaries under such Contract of more than $1,500,000 over the remaining term of such Contract or more than $2,500,000 annually (other agreement with than intercompany payments). Each of the Contracts of any of the types described in this Section 5.15(a) and Section 5.18(e) is referred to in this Agreement as a labor union, labor organization or works council“Company Contract.”
(b) Each Material Company Contract is (i) a valid and binding agreementon the Company and/or any of the Company Subsidiaries to the extent such Person is a party thereto, (ii) as applicable, and to the Knowledge of the Company, each other party thereto, and is in full force and effect, (iii) and is on arm’s length terms and was entered into enforceable in the ordinary course of business, and (iv) enforceable by and all material respects against the Company Group or such applicable Company Subsidiary thereto, and, to the Knowledge of the Company’s Knowledge, each counterparty that is other party thereto, subjectassuming the due authorization, in execution and delivery by the case other party thereto, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of this clause (iv)general applicability relating to or affecting creditors’ rights or by general equity principles. Except as would not have a Company Material Adverse Effect, neither the Company nor any Company Subsidiary is or has received written notice claiming the Company or any Company Subsidiary is and, to the Enforceability Exceptions. Neither the Company Group nor, to Knowledge of the Company’s Knowledge, as of the date of this Agreementno other party is, in breach or violation of, or in default under, any other party to a Material Company Contract. There are no events or conditions which constitute, is in material breach or, after notice or default (whether with or without the passage lapse of time or both, will constitute a default on the giving part of notice the Company or both) any of its Subsidiaries, or to the Knowledge of the Company, any counterparty under the terms of any such Company Contract, except as would not have a Company Material ContractAdverse Effect. The Company Group has not assignedreceived any notice in writing from any Person that such Person intends to terminate, delegated or otherwise transferred not renew, any of its rights or obligations under any Material Contract or granted any power of attorney with respect theretoCompany Contract.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Contracts. (a) Section 4.11 of the Company Disclosure Schedule 4.14(a) sets forth a true, complete and accurate list, as list of the date of this Agreement, of all each of the following Contracts as amended agreements to date which are currently in effect (collectivelythe Company, “Material Contracts”):any Company Subsidiary or any Nonprofit Organization is party or by which any of them is bound:
(i) all Contracts contract that require annual payments or expenses incurred by, or annual payments or income to, would be required to be filed by the Company Group as a material contract pursuant to Item 601(b)(10) of $200,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practices)Regulation S-K;
(ii) all salescontract containing covenants of the Company, advertisingany Company Subsidiary or Nonprofit Organization not to compete in any line of business, agencyindustry or geographical area or which affects the ability of an Affiliate of the Company, sales promotionany Company Subsidiary or any Nonprofit Organization from competing in any line of business, market research, marketing industry or similar Contractsgeographical area;
(iii) contract which does, or could reasonably be construed to, create a partnership or joint venture or similar arrangement with respect to any material business of the Company, any Company Subsidiary or Nonprofit Organization;
(iv) contract that, individually or in the aggregate, could or could reasonably be expected to prevent, materially delay or materially impede the Company’s ability to consummate the transactions contemplated by this Agreement;
(v) indenture, credit agreement, loan agreement, guarantee, note or other evidence of Indebtedness or agreement providing for Indebtedness in excess of the Material Amount;
(vi) contract (other than the Original Agreement and this Agreement) for the acquisition or sale of assets (whether by merger, consolidation, acquisition of stock or assets or otherwise) in excess of the Material Amount;
(vii) collective bargaining agreement, employment agreement, offer letter, or severance or termination or transition agreement, in each Contract case providing for annual payments of more than the Material Amount;
(viii) agreement (or group of related agreements) for the lease of personal property providing for annual payments of more than the Material Amount;
(ix) contract (other than purchase orders) for the purchase or sale of materials, supplies, goods, equipment, products, merchandise or other assets, or for the furnishing or receipt of services, with any current of the top 20 vendors of the Company, the Company Subsidiaries and the Nonprofit Organizations, based on aggregate payments made by the Company, the Company Subsidiaries and the Nonprofit Organizations to such vendors, taken as a whole, during the fiscal year ending June 30, 2005;
(x) contract that contains a put, call, right of first refusal or similar right pursuant to which the Company, any Company Subsidiary or any Nonprofit Organization could be required to purchase or sell, as applicable, any Equity Interests of any Person or assets that have a fair market value or purchase price of more than the Material Amount;
(xi) settlement or conciliation agreement or similar agreement (except for benefit plans and individual employee agreements) or order or consent of a Governmental Authority to which the Company or any of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and Subsidiaries or Nonprofit Organizations is a party involving future performance by the Company or any Company Subsidiary or Nonprofit Organization which is not terminable for material to the Company;
(xii) other contract (other than the Original Agreement, this Agreement or purchase orders in the Ordinary Course of Business) pursuant to which the Company or any reason Company Subsidiary or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee Nonprofit Organization has incurred a Liability in excess of $60,000 the Material Amount or providing for payments from the Company or any Company Subsidiary or Nonprofit Organization in excess of the Material Amount or the consequences of a default or termination of which could have a Material Adverse Effect;
(other than COBRA obligations xiii) contract by which the Company, any Company Subsidiary or any Nonprofit Organization licenses to or from any Person any material Intellectual Property or that otherwise concerns material Intellectual Property or that otherwise concerns material Intellectual Property;
(xiv) agreement with any shareholder, former shareholder, affiliate, director or officer of the Company, any Company Subsidiary or any Nonprofit Organization, or any relative of any of the foregoing; and
(xv) Real Property Leases; and
(xiv) Tax sharing agreements or similar requirements agreements with respect to Taxes.
(b) Each such contract described in Section 4.11(a) is referred to herein as a “Material Contract.” With respect to each Material Contract: (i) neither the Company nor any Company Subsidiary or Nonprofit Organization is (and, to the knowledge of the Company, no other party is) in or is alleged to be in breach of or default under applicable local Law)such Material Contract; (ii) neither the Company nor any Company Subsidiary or Nonprofit Organization has given or received any written notice or claim of default under such Material Contract; (Ciii) providing for no event has occurred that, with or without notice or lapse of time or both, would result in a payment breach or benefit upon a default under such Material Contract; (iv) such Material Contract is in full force and effect, and is the valid, binding and enforceable obligation of the Company, the Company Subsidiaries or the Nonprofit Organizations, as applicable, and to the knowledge of the Company, of the other parties thereto; (v) the consummation of the transactions contemplated by this Agreement will not result in such Material Contract failing to continue in full force and effect after the consummation of such transactions without penalty or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the Company or any Subsidiary is a party;
(v) all Contracts relating to any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
adverse consequence; (vi) all IP Contracts, separately identifying all no party has repudiated any provision of such IP Contracts under which the Company is obligated to pay royalties thereunder Material Contract; and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete except as set forth in any line of business or industry, with any Person or in any geographic area;
(viiiSection 4.11(b) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which Disclosure Schedule, such Material Contract does not contain any Affiliate “change of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder control” or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate similar provision that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreementtriggered by, or the amount contain an assignment prohibition or value thereof will be calculated on the basis ofsimilar provision that would prohibit, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union. The Company has made available to ANM true, labor organization or works council.
(b) Each Material Contract is (i) a valid correct and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course complete copies of business, and (iv) enforceable by and against the Company Group and, to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of the date of this Agreement, any other party to a Material Contract, is in including all material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect amendments thereto.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Contracts. (a) Schedule 4.14(a5.14(a) sets forth a true, complete and accurate list, as of the date of this Agreement, of all of the following Contracts as amended to date which are currently in effect (collectively, “Material Contracts”):
(i) all Contracts that require annual payments or expenses incurred by, or annual payments or income to, the Company Group of $200,000 1,000,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practices);
(ii) all sales, advertising, agency, sales promotion, market research, marketing or similar Contracts;
(iii) each Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000250,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit in excess of $250,000 upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which a member of the Company or any Subsidiary Group is a party;
(v) all Contracts relating to any acquisitions or dispositions of assets of value in excess of $100,000 500,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoingpractices);
(vi) all material IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, indemnification arrangements and other hold harmless arrangements made or where such Contract was entered into provided by the Company, including all ongoing agreements for the primary purpose of providing indemnificationrepair, warranty, maintenance, service, indemnification or similar obligations, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employeeSecurityholder;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) ), other than IP Contracts or Standard Contracts, in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 250,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 1,000,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty ninety (6090) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 300,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan all research and Contracts entered into development contracts with annual payments in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, excess of $300,000;
(xv) all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xvxvi) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, effect and (iii) is on arm’s length terms and was entered into in the ordinary course of business, and (iv) enforceable by and against the Company Group and, to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case of this clause (iviii), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of the date of this Agreement, any other party to a Material Contract, Contract is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Contracts. (a) Schedule 4.14(a2.24 of the Company Disclosure Schedule lists the following agreements (written or oral) sets forth to which the Company or any of the Company Subsidiaries is a true, complete and accurate list, party as of the date of this Agreement, of all of Agreement which do not exceed $25,000 in the following Contracts as amended to date which are currently in effect (collectively, “Material Contracts”):aggregate:
(i) all Contracts that require annual payments any agreement (or expenses incurred by, group of related agreements) for the lease of personal property from or annual payments or income to, the Company Group of $200,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practices)to third parties;
(ii) all sales, advertising, agency, sales promotion, market research, marketing any agreement (or similar Contractsgroup of related agreements) for the purchase or sale of products or for the furnishing or receipt of services;
(iii) each Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason agreement establishing a partnership or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Companyjoint venture;
(iv) all Contracts creating any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) or under which it has imposed (or may impose) a joint ventureSecurity Interest on any of its assets, strategic alliancetangible or intangible;
(v) any agreement that purports to limit in any material respect the right of the Company or any of the Company Subsidiaries to engage in any line of business, limited liability company or partnership arrangement to compete with any person or operate in any geographical location;
(vi) any employment or consulting agreement;
(vii) any agreement involving any current or former officer, director or stockholder of the Company or any Affiliate thereof;
(viii) any agreement under which the consequences of a default or termination would reasonably be expected to have a Company Material Adverse Effect;
(ix) any agreement which contains any provisions requiring the Company or any of the Company Subsidiaries to indemnify any other party thereto (excluding indemnities contained in agreements for the purchase, sale or license of products entered into in the Ordinary Course of Business);
(x) any other agreement (or group of related agreements) either involving more than $25,000 or not entered into in the Ordinary Course of Business; and
(xi) any agreement, other than as contemplated by this Agreement and the Transfer, relating to the sales of securities of the Company or any of the Company Subsidiaries to which the Company or any such Company Subsidiary is a party;
(v) all Contracts relating to any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of business, and (iv) enforceable by and against the Company Group and, to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of the date of this Agreement, any other party to a Material Contract, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Contracts. (ai) Schedule 4.14(aExcept for those Contracts that (x) sets forth have expired as of the date of this Agreement or (y) are disclosed in Section 5.1(q) of the Company Disclosure Letter, and other than this Agreement, none of the Company or any of its Subsidiaries is a true, complete and accurate list, party to or bound by any Contract as of the date of this Agreement, of all :
(A) containing covenants of the following Contracts as amended Company or any of its Subsidiaries purporting to date limit in any material respect any line of business, industry or geographical area in which are currently in effect (collectively, “Material Contracts”):the Company or its Subsidiaries may operate or granting material exclusive rights to the counterparty thereto;
(iB) all Contracts with any Affiliate or that require annual payments or expenses incurred by, or annual payments or income to, would be required to be disclosed by Section 404(a) of Regulation S-K under the Exchange Act;
(C) providing for indemnification by the Company Group or any of $200,000 its Subsidiaries of any Person, except for (1) any such Contract that is (x) not material to the Company or more any of its Subsidiaries and (other than standard purchase and sale orders y) entered into in the ordinary course of business consistent with past practices)and (2) any indemnification or advancement obligations set forth in the certificate of incorporation, bylaws or comparable organizational documents of the Company and its Subsidiaries;
(iiD) all salesthat contains a put, advertising, agency, sales promotion, market research, marketing call or similar Contracts;
(iii) each Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement right pursuant to which the Company or any Subsidiary of its Subsidiaries is required to purchase or sell, as applicable, any equity interests of any Person or assets that have a party;
(v) all Contracts relating to any acquisitions fair market value or dispositions purchase price of assets of value in excess of more than $100,000 by the Company Group (25,000, other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing)business;
(viE) all IP Contractscontaining any standstill or similar agreement pursuant to which one party has agreed not to acquire assets or securities of another Person, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in except for any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group that is a partyconfidentiality, other than any Contracts relating to such Affiliate’s status as a Company Securityholder non-disclosure or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess similar type of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of business or in connection with the potential sale of the Company;
(F) other than with respect to any partnership that is wholly owned by the Company or any wholly owned Subsidiary of the Company, any partnership, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture material to the Company or any of its Subsidiaries or in which the Company owns more than a 15% voting or economic interest, or any interest valued at more than $10,000 without regard to percentage voting or economic interest;
(G) relating to or evidencing Indebtedness in excess of $25,000 individually;
(H) relates to any hedging arrangement;
(I) that grants any rights of first refusal, rights of first negotiation or other similar rights to any Person with respect to the sale of any material business of the Company and its Subsidiaries, taken as a whole, or of any Subsidiary of the Company;
(J) (i) entered into after January 1, 2010, and not yet consummated, for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of any Person for aggregate consideration under such Contract in excess of $15,000 individually, or $50,000 in the aggregate, other than purchases of inventory or similar assets in the ordinary course of business, or (ii) for any acquisition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of any Person, pursuant to which the Company or any of its Subsidiaries has continuing “earn out” or other similar contingent payment obligations (but excluding indemnification obligations with respect to any retained liabilities or breaches of representations, warranties or covenants);
(K) that is (i) an agreement pursuant to which the Company or any of its Subsidiaries licenses or is otherwise permitted by a third party to use any material Intellectual Property (other than any “shrink wrap,” “commercially available off-the-shelf software package,” “click wrap,” or “click-through” license), or (ii) an agreement pursuant to which a third party licenses or is otherwise permitted to use any material Intellectual Property owned by the Company or any of its Subsidiaries, in each case of clauses (i) and (ivii) enforceable by and against where such agreement is material to the business of the Company Group and its Subsidiaries, taken as a whole;
(L) with any customer of the Company or any Subsidiary or any other Person pursuant to which the Company and its Subsidiaries reasonably expect to receive aggregate payments in excess of $200,000 in calendar year 2012, other than purchase orders issued in the ordinary course;
(M) with any supplier of the Company or any Subsidiary or any other Person pursuant to which the Company and its Subsidiaries reasonably expect to make aggregate payments in excess of $200,000 in calendar year 2012, other than purchase orders issued in the ordinary course;
(N) that is a mortgage, pledge, security agreement, deed of trust or other Contract granting a Lien, other than a Permitted Lien, on any material property or asset of the Company or any Subsidiary thereof; or
(O) that (i) contains most favored customer pricing provisions with any third party or (ii) grants any exclusive rights, rights of first refusal, rights of first negotiation or similar rights to any Person. (each such Contract described in clauses (A) through (O) and any Contract required to be filed by the Company with the SEC pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act is referred to herein as a “Material Contract”).
(ii) Each of the Material Contracts is valid and binding on the Company and each of its Subsidiaries that is a party thereto and, to the Knowledge of the Company’s Knowledge, each counterparty other party thereto and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect that, individually or in the aggregate, have not had and are not reasonably likely to have a Company Material Adverse Effect and subject to the Bankruptcy and Equity Exception. There is no default under any Material Contract by the Company or any of its Subsidiaries that is a party thereto, subjectand no event has occurred that with notice or lapse of time or both would constitute a default thereunder by the Company or any of its Subsidiaries that is a party thereto, except in each case as, individually or in the case aggregate, have not had and are not reasonably likely to have a Company Material Adverse Effect. Complete and correct copies of this clause (iv), each Material Contract have been made available to Parent prior to the Enforceability Exceptions. Neither date hereof, except for any Contracts (x) where the Company Group nor, terms thereof prohibit their disclosure to the Company’s Knowledge, any third party or (y) that have expired as of the date of this Agreement, any other party to a Material Contract, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect theretohereof.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Contracts. (ai) Section 4.1(i) of the Disclosure Schedule 4.14(a) sets forth a true, correct and complete and accurate list, as of the date of this Agreement, of all list of the following Contracts as amended (including all amendments, modifications and supplements thereto) binding on a Company or any of its Subsidiaries or any of the properties or assets of such Company or any of its Subsidiaries (each Contract that is required to date which are currently in effect (collectivelybe listed on Section 4.1(i) of the Disclosure Schedule, a “Material ContractsContract”):
(1) each Contract pursuant to which Seller, any Company or any Subsidiary thereof (i) all Contracts that require receives management or operation services from any operator, manager or management company, in each case, with respect to any of the Company Properties and (ii) requires annual payments or expenses incurred by, or annual payments or income to, the Company Group in excess of $200,000 and (iii) is not terminable on thirty (30) days’ notice or more less without penalty or premium;
(other than standard purchase and sale orders entered into in 2) each Contract pursuant to which Seller or any Subsidiary thereof leases any of the ordinary course of business consistent with past practicesCompany Properties from a third-party landlord (collectively, the “Ground Leases”);
(ii3) all sales, advertising, agency, sales promotion, market research, marketing or similar Contractseach Space Lease;
(iii4) each Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason on ninety (90) days’ notice or no reason upon reasonable notice less without payment of any penalty, severance penalty or other obligation; (B) providing for severance or post-termination premium involving annual payments or benefits to such employee in excess of $60,000 (other than COBRA obligations 1,500,000 or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation aggregate payments in respect of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all such Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the Company or any Subsidiary is a party;
(v) all Contracts relating to any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing)5,000,000;
(vi5) all IP Contracts, separately identifying all such IP Contracts under each Contract pursuant to which the Seller or any Subsidiary thereof is party to a tax abatement agreement or similar “payment in lieu of taxes” arrangement with respect to any property of a Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunderor its Subsidiaries;
(vii6) all Contracts limiting the freedom each Contract containing covenants applicable to a Company or any of the Company Group its Affiliates that limits their ability to compete with any Person, in any line of business or industry, with any Person or in any geographic areaarea (excluding any restrictions contained in any Space Lease with respect to the use of the Company Property to which such Space Lease applies);
(viii7) all Contracts providing for guarantees, or where such each Contract was entered into for the primary purpose of providing indemnification, other than Standard Contractswith Governmental Entities;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee8) each Contract evidencing Indebtedness;
(x9) all Contracts relating each joint venture or partnership Contract or similar agreement with a third party providing for the formation, creation, operation or control of any partnership or joint venture;
(10) any Contract pursuant to which (i) any Company Property was acquired by a Company or any Subsidiary thereof or (ii) any property previously owned by a Company or assets any Subsidiary thereof was sold that, in each case, which has any continuing material liability or obligation, contingent or otherwise, thereunder and has been acquired or sold within the past 24 months (whether real as applicable);
(11) any Contract for capital expenditures or personal, tangible or intangible) in which the improvements at any Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder Property for ongoing work with an estimated liability in excess of $200,000 per year1,000,000 in the 24 months immediately following the date hereof;
(xi12) all Contracts creating any stock or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) equity interest purchase, stock option, profits interest, “phantom” stock, stock appreciation, stock-based performance unit, subscription or similar plan in the aggregate that are valued at $250,000 Companies or greatertheir respective Subsidiaries;
(xii13) all Contracts any Contract relating to the voting pending acquisition or control disposition (by merger or otherwise) of any Company Properties or other real property interests (including the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company GroupAcquisition Purchase Agreements);
(xiii14) all Contracts not cancellable by the any Contract that grants a Company Group with no more than sixty (60) days’ notice if the effect or any of such cancellation would result in monetary penalty its Subsidiaries a license to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) material third party Intellectual Property, other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject clickwrap, shrink-wrap or other similar licenses to the Equity Incentive Plan, all Contracts under commercially available software available on nondiscriminatory terms which any require a onetime fee or annual aggregate payment of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreementless than $25,000; and
(xv15) all collective bargaining agreements or other agreement with a labor union, labor organization or works councilany Contract to enter into any of the foregoing.
(bii) Each Except with respect to the Space Leases, which are addressed in Section 4.1(k) below, each Material Contract is (i) a represents the legally valid and binding agreementobligation of such Company or its Subsidiary party thereto, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of business, and (iv) enforceable by and against the Company Group and, to the Company’s Knowledgeknowledge of Seller, each counterparty that is the legally valid and binding obligation of the other party or parties thereto, enforceable against the parties thereto in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, in the case of this clause (iv)as to enforceability, to the Enforceability Exceptionsgeneral principles of equity. Neither the No Company Group nor its Subsidiaries nor, to the Company’s Knowledge, as knowledge of the date of this AgreementSeller, any other party or parties to a any Material Contract (excluding Space Leases) is in breach of or default under any Material Contract, and, to the knowledge of Seller, there is in material breach or default (whether no event which with or without the giving of notice, the passage of time or the giving both would constitute a breach of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations default under any Material Contract Contract, except, in each case, for such breach or granted any power default that would not individually or in the aggregate, result in a Material Adverse Effect. Seller has provided Buyer with true, correct and complete copies of attorney with respect thereto.
the Material Contracts (c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds amendments and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtednesssupplements thereto).
Appears in 1 contract
Contracts. (a) Schedule 4.14(a5.14(a) sets forth a true, complete and accurate list, as of the date of this AgreementCompany Disclosure Schedules lists all material Contracts, of all of oral or written (collectively, the following Contracts as amended “Material Contracts”) to date which the Company or any Subsidiary is a party and which are currently in effect (collectively, “Material Contracts”):and constitute the following:
(i) all Contracts that require annual payments or expenses incurred by, or annual payments or income to, the Company Group of $200,000 1,000,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practicespractice);
(ii) all sales, advertising, agency, lobbying, broker, sales promotion, market research, marketing or similar Contractscontracts and agreements, in each case requiring the payment of any commissions by the Company in excess of $500,000 annually;
(iii) each Contract all employment Contracts, employee leasing Contracts, and consultant and sales representatives Contracts with any current or former officer, director, employee or consultant of the Company Group or any Subsidiary or other Person, under which the Company (A) which has continuing obligations for payment of an annual compensation of at least $200,000300,000 (other than oral arrangements for at-will employment), and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for has material severance or post-post termination payments or benefits obligations to such employee in excess of $60,000 Person (other than COBRA obligations or similar requirements under applicable local Lawobligations); , or (C) providing for has an obligation to make a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement hereby or as a result of a change of control of the Company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or and partnership arrangement agreements to which the Company or any Subsidiary is a party;
(v) all Contracts relating to any acquisitions or dispositions of assets of value by the Company in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing)1,000,000;
(vi) all IP ContractsContracts for material licensing agreements, separately identifying all such IP including Contracts under which licensing Intellectual Property Rights, other than (i) “shrink wrap” licenses, and (ii) non-exclusive licenses granted in the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunderordinary course of business;
(vii) Contracts (i) under which the Company or any of its Subsidiaries is currently: (A) licensing or otherwise providing the right to use to any third party any Owned Intellectual Property, or (B) licensing or otherwise receiving the right to use from any third party any material Intellectual Property, with the exception of (1) non-exclusive licenses and subscriptions to commercially available software or technology used for internal use by the Company, with a dollar value individually not in excess of $150,000, (2) any Contract related to open source software, or (3) any Contract under which the Company licenses any of its Intellectual Property in the Ordinary Course, and (ii) under which the Company or any of its Subsidiaries has entered into an agreement not to assert or sue with respect to any Intellectual Property;
(viii) all Contracts relating to material secrecy, confidentiality and nondisclosure agreements substantially limiting the freedom of the Company Group or any Subsidiary to compete in any line of business or industry, with any Person or in any geographic area;
(viiiix) all Contracts relating to material patents, trademarks, service marks, trade names, brands, copyrights, trade secrets and other material Intellectual Property Rights of the Company;
(x) all Contracts providing for material guarantees, indemnification arrangements and other hold harmless arrangements made or where such Contract was entered into provided by the Company or any Subsidiary, including all ongoing agreements for the primary purpose of providing indemnificationrepair, other than Standard Contractswarranty, maintenance, service, indemnification or similar obligations;
(ixxi) all Contracts with or pertaining to the Company Group or any Subsidiary to which any Affiliate of the Company Group Shareholder is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(xxii) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group or any Subsidiary holds a leasehold interest (including the LeaseLeases) and which involve payments to the lessor thereunder in excess of $200,000 10,000 per yearmonth;
(xixiii) all Contracts creating or otherwise relating to outstanding Indebtedness Indebtedness, including financial instruments of indenture or security instruments (other than intercompany Indebtednesstypically interest-bearing) in the such as notes, mortgages, loans and lines of credit, except any such Contract with an aggregate that are valued at outstanding principal amount not exceeding $250,000 or greater500,000;
(xiixiv) all Contracts any Contract relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group or other Subsidiary (other than the organizational or constitutive documents Organizational Documents of the Company GroupCompany);
(xiiixv) all Contracts not cancellable any Contract that can be terminated, or the provisions of which are altered, as a result of the consummation of the transactions contemplated by this Agreement or any of the Additional Agreements to which the Company Group with no more than sixty or any Subsidiary is a party;
(60xvi) days’ notice if the effect of such cancellation would result in monetary penalty any Contract relating to the Company Group Business and not otherwise described in this Section 5.14(a), if it involves an amount in excess of $200,000 per the terms of such contract;2,000,000, it being understood that this clause applies only to metals and other trading contracts entered into on or after January 1,2023; and
(xivxvii) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under any Contract for which any of the benefits, compensation or payments (or the vesting thereof) with respect to a Shareholder, or with respect to a director, officer, employee or consultant of the Company or any Subsidiary will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, hereby or the amount or value thereof will be calculated on the basis of, of any of the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Except for any Material Contract that has terminated or will terminate upon the expiration of the stated term thereof prior to the Closing Date, and except as set forth on Schedule 5.14(b) of the Company Disclosure Schedules, (i) each Material Contract is (i) a valid and binding agreement, (ii) and is in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of business, and (iv) enforceable by and against neither the Company Group and, to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group or any Subsidiary nor, to the Company’s Knowledge, as of the date of this Agreementknowledge, any other party to a Material Contractthereto, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The , (ii) the Company Group and each Subsidiary has not assigned, delegated delegated, or otherwise transferred any of its rights or obligations under with respect to any Material Contract Contract, or granted any power of attorney with respect theretothereto or to any of the Company’s or any Subsidiary’s assets, (iii) no Material Contract (A) requires the Company or any Subsidiary to post a bond or deliver any other form of security or payment to secure its obligations thereunder or (B) imposes any non-competition covenants that may be binding on, or restrict the Business or require any payments by or with respect to the Company or any of its Affiliates. The Company has previously provided to the Parent Parties true and correct fully executed copies of each written Material Contract.
(c) The Except as set forth on Schedule 5.14(c) of the Company Group Disclosure Schedules, none of the execution, delivery or performance by the Company of this Agreement or Additional Agreements to which the Company is a party or the consummation by the Company of the transactions contemplated hereby or thereby constitutes a default under or gives rise to any right of termination, cancellation or acceleration of any obligation of the Company or any Subsidiary or to a loss of any material benefit to which the Company or any Subsidiary is entitled under any provision of any Material Contract.
(d) Except as set forth on Schedule 5.14(d) of the Company Disclosure Schedules, the Company is in compliance in with all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or agreements evidencing any Indebtedness.
Appears in 1 contract
Sources: Merger Agreement (HHG Capital Corp)
Contracts. (a) Except as set forth on Schedule 4.14(a3.19(a) sets forth a trueand the Transaction Documents, complete and accurate list, as of the date of this Agreement, of all of the following Contracts as amended to date which are currently in effect (collectively, “Material Contracts”):neither any Group Company nor any Subsidiary is bound by:
(i) all Contracts that require annual payments or expenses incurred by, or annual payments or income to, the Company Group of $200,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practices);
(ii) all sales, advertising, agency, sales promotion, market research, marketing or similar Contracts;
(iii) each any Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess (x) a commitment of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing employment for a payment specified or benefit upon unspecified term or otherwise relating to employment or the consummation termination of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result employment of a change of control senior executive officers of the Company;
; and (ivy) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the any obligation of any Group Company or any Subsidiary is a party;
(v) all Contracts relating to any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnificationmake payments, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of business, and to any Employee exceeding RMB2,000,000 or any group of Employees exceeding RMB5,000,000 in the aggregate;
(ii) any material Contract (other than the Transaction Documents) with any Person containing any provision or covenant prohibiting or limiting the ability of the Company or any Subsidiary to engage in any business activity or compete with any Person;
(iii) any material partnership, joint venture, shareholders or other similar Contracts with any Person, except that the Company may enter into such Contract with other investors that purchase addition Series A preferred Shares;
(iv) enforceable any Contract relating to Indebtedness of any Group Company or any Subsidiary or to any preferred shares issued by and against any Group Company or any Subsidiary, other than the incurrence of accounts payable in the ordinary course of business of the Group Companies, except that the Company may enter into such Contract with other investors that purchase addition Series A preferred Shares;
(v) any material Contract relating to (x) the future disposition or acquisition of any Assets and Properties and (y) any merger or other business combination;
(vi) any material Contract between or among any Group andCompany or any Subsidiary, on the one hand, and the Founder, on the other hand;
(vii) any Contract (other than the Transaction Documents) that in any material respect, (x) limits, or contains restrictions on, the ability of any Group Company or any Subsidiary to declare or pay dividends on, to make any other distribution in respect of or to issue or purchase, redeem or otherwise acquire its Equity Securities, to incur Indebtedness, to incur or suffer to exist any Encumbrance, to purchase or sell any Assets and Properties, to change the Company’s Knowledgelines of business in which it participates or engages or to engage in any business combination or (y) require any Group Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition; and
(viii) any other Contract that requires the payment by or to any Group Company or any Subsidiary of more than RMB10,000,000 annually, each counterparty except the incurrence of accounts payable and receivable in the ordinary course of business of the Group Companies.
(b) Each Contract required to be disclosed in Schedule 3.19(a) constitutes a legal, valid and binding agreement of the Group Companies who are parties to such Contract, enforceable against them in accordance with its terms; and except as disclosed in Schedule 3.19(b), neither any Group Company nor any Subsidiary or the Founder is aware of, or has received any notice that is party thereto, subjectit is, in the case violation or breach of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of the date of this Agreement, any other party to a Material Contract, is in material breach or default under any such Contract (whether or with notice or without the passage lapse of time or the giving both, would be in violation or breach of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtednesssuch Contract).
Appears in 1 contract
Sources: Share Subscription Agreement (Charm Communications Inc.)
Contracts. (a) Schedule 4.14(aSection 3.07(a) of the Company Disclosure Schedules sets forth a true, complete and accurate list, as of (with specific reference to the date subsection of this Agreement, of all Section 3.07(a) to which it relates) each of the following Contracts as amended to date which the Company or any of its Subsidiaries is a party or bound or to which any of the Company's or any of its Subsidiaries' properties or assets are currently in effect subject, and for which the Company or any of its Subsidiaries, on the one hand, or the other party to such Contract, on the other hand, has current or future rights or obligations (collectively, the “Material Section 3.07(a) Contracts”):
(i) all Contracts each Contract made outside the ordinary course of business of the Company;
(ii) each employment Contract, each advisory Contract and each consulting Contract to which the Company or any of its Subsidiaries is a party;
(iii) (A) each employee collective bargaining agreement or other Contract with any labor union or similar organization, (B) each plan, program or Contract that require annual payments provides for the payment of bonus, severance, change of control, retention, termination or expenses incurred bysimilar types of compensation or benefits related to a corporate transaction involving the Company or upon the termination or resignation of any Participant and (C) each plan, program or Contract that provides for medical, life insurance or similar benefits for Participants upon their retirement from, or annual payments termination of employment with or income toservices for, the Company Group or any of $200,000 its Subsidiaries;
(iv) each Contract pursuant to which the Company or more any of its Subsidiaries has agreed not to compete with any Person or not to engage in any activity or business, or pursuant to which any material benefit is required to be given or lost as a result of so competing or engaging;
(v) each Contract (including consulting and services agreements) which provides for “exclusivity” or any similar requirement in favor of any Person other than the Company or any of its Subsidiaries, or under which the Company or any of its Subsidiaries is restricted in any respect in the distribution, licensing, marketing, purchasing, development or manufacturing of its products or services in any jurisdiction;
(vi) each Contract with (A) the Selling Members or any of their Affiliates, (B) any other Affiliate of the Company or (C) any Participant or any current or former director, officer or employee, contractor or consultant of any Affiliate of the Company (other than employment Contracts referred to in clause (ii) above, Benefit Plans and Benefit Agreements);
(vii) each license granted by the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries has agreed to refrain from granting license rights to any other Person;
(viii) each Contract for borrowed money under which the Company or any of its Subsidiaries has incurred any Indebtedness that is currently owing or given any Guarantee with respect to any Contract for borrowed money under which a third party has incurred Indebtedness that is currently owing, or any Contract pursuant to which any Person has provided a commitment to make a loan or advance to the Company or any of its Subsidiaries;
(ix) each Contract under which the Company or any of its Subsidiaries has agreed to indemnify any Person;
(x) each Contract creating or granting a Lien (including Liens upon properties acquired under conditional sales, capital leases or other title retention or security devices);
(xi) each Contract that requires consent, approval or waiver of, or notice to, a Governmental Entity or other third party in the event of or with respect to the transactions contemplated by this Agreement or the Indemnification Agreement , including in order to avoid termination of or loss of a benefit under any such Contract;
(xii) each Contract providing for future performance (other than standard purchase and sale orders entered into prepaid maintenance) by the Company or any of its Subsidiaries in consideration of amounts in excess of $25,000 previously paid to the Company or any of its Subsidiaries, or which has resulted in or will result in deferred revenue under GAAP in excess of $25,000;
(xiii) each Contract providing for future performance by the Company or any of its Subsidiaries other than in the ordinary course of business consistent with past practices)of the Company;
(iixiv) all saleseach material Contract between the Company or any of its Subsidiaries, advertisingon the one hand, agencyand a Customer or Business Partner, sales promotion, market research, marketing or similar Contractson the other hand;
(iiixv) each material Contract containing any provisions (A) dealing with a "change of control" or similar event with respect to the Company or any current employee of its Subsidiaries, (B) prohibiting or imposing any restrictions on the assignment of such Contract or any portion thereof by the Company to any other Person, (C) having the effect of providing that the consummation of any of the transactions contemplated by this Agreement, the Indemnification Agreement and the Escrow Agreement or compliance by the Company with the provisions of this Agreement and the Indemnification Agreement or the execution, delivery or effectiveness of this Agreement and the Indemnification Agreement will conflict with, result in a violation or breach of, or constitute a default under (with or without notice or lapse of time, or both), such Contract or give rise under such Contract to any right of, or result in, a termination, right of first refusal, amendment, revocation, cancelation or acceleration, or loss of a benefit, or the creation of any Lien in or upon any of the properties or assets of the Company Group (A) which has continuing obligations for payment or any of an annual compensation its Subsidiaries or the Buyer and any of at least $200,000its Subsidiaries, and which is not terminable for or to any reason increased, guaranteed, accelerated or no reason upon reasonable notice without payment additional rights or entitlements of any penaltyPerson, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (CD) having the effect of providing for a payment or benefit upon that the consummation of any of the transactions contemplated by this Agreement or the Indemnification Agreement will require that a third party be provided with access to source code or that any Ancillary Agreement source code be released from escrow and provided to any third party. “Material” for purposes hereof shall mean any contract providing for future payment by or as a result of a change of control of the Company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the Company or any Subsidiary is a party;
(v) all Contracts relating to any acquisitions or dispositions of assets its Subsidiaries of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other 50,000 or performance more than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of business, and (iv) enforceable by and against the Company Group and, to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of twelve months from the date of this Agreement, any other party to a Material Contract, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.hereof;
Appears in 1 contract
Sources: Unit Purchase Agreement (Gilat Satellite Networks LTD)
Contracts. (a) Schedule 4.14(aSection 2.9(a) sets forth of the Company Disclosure Letter identifies each Company Contract that constitutes a true, complete and accurate list, Material Contract as of the date of this Agreement. For purposes of this Agreement, of all each of the following Company Contracts, along with the Contracts as amended required to date which are currently be disclosed in effect (collectivelySection 2.7(a)(i) of the Company Disclosure Letter, shall be deemed to constitute a “Material ContractsContract”)::
(i) all Contracts that require annual any Company Contract (A) with any current or former Company Associate pursuant to which any Acquired Company is or may become obligated to make or provide any severance, termination, retention, change in control, tax gross-up or similar payment or benefits to such Company Associate, except for severance, termination, or similar payments or expenses incurred bybenefits required by applicable Legal Requirements or (B) pursuant to which any Acquired Company is or may become obligated to grant or accelerate the vesting of, or annual payments otherwise modify, any Company Option, Company Warrant, or income to, stock bonus other than accelerated vesting provided in any Company Equity Plan or any applicable award agreement under the Company Group of $200,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practices);Equity Plans;
(ii) all salesany Company Contract containing (A) any exclusivity obligations or otherwise limiting the freedom or right of an Acquired Company, advertisingin any material respect, agencyto engage in any line of business, sales promotion, market research, marketing or to compete with any other Person in any location or line of business or (B) any “most favored nations” terms and conditions (including with respect to pricing) or similar Contracts;restrictions with respect to pricing granted by an Acquired Company;
(iii) each any Company Contract with any current employee of the Company Group that requires by its terms (A) which has continuing obligations for the payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance cash or other obligation; (B) providing for severance or post-termination payments or benefits to such employee consideration by Acquired Company in an amount having an expected value in excess of $60,000 250,000 in the fiscal year ending December 31, 2024, and (B) delivery of cash or other consideration to an Acquired Company in an amount having an expected value in excess of $250,000 in the fiscal year ending December 31, 2024, in each case excluding non-exclusive licenses for Open Source Software or commercially available Software with a replacement value of less than COBRA $50,000;
(iv) any Company Contract relating to Indebtedness (whether incurred, assumed, guaranteed or secured by any asset) of the Company or any other Acquired Company;
(v) any Company Contract constituting a joint venture, partnership, or limited liability corporation for the sharing of profits and losses;
(vi) any Company Contract that prohibits the payment of dividends or distributions in respect of the capital stock of the Company or any Acquired Company, the pledging of the capital stock or other equity interests of the Company or any Acquired Company or prohibits the issuance of any guaranty by the Company or any Acquired Company;
(vii) any Company Lease;
(viii) any Contract relating to any disposition or acquisition by an Acquired Company of any Entity (or equity interests therein) or business (including assets constituting a material business or business lines) that has material obligations remaining to be performed or material liabilities continuing after the date of this Agreement;
(ix) any (A) Government Contract and (B) any bid, offer, proposal, term sheet or other instrument that, if accepted or awarded, could reasonably be expected to lead to a Government Contract, in each case that is currently in effect or is outstanding or within the past five (5) years has been in effect or outstanding;
(x) any Contracts (A) with any record or, to the knowledge of the Company, beneficial owner as of the date hereof of five percent (5%) or more of the voting securities of the Company, or (B) of the type that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act;
(xi) any hedging, swap, derivative or similar requirements under applicable local Law); or Company Contracts;
(Cxii) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement any Company Contract that requires any Acquired Company, or any Ancillary Agreement successor to, or acquirer of, the Company or any other Acquired Company, to make any payment to another Person as a result of a change of control of any Acquired Company;
(xiii) any Company Contract that contains a put, call or similar right pursuant to which any Acquired Company could be required, upon the Companyexercise of such right, to purchase or sell, as applicable, any equity interests or assets of any Person that are material to such Acquired Company;
(xiv) any Company Contract which constitutes a settlement or conciliation agreement (A) pursuant to which any Acquired Company is obligated after the date of this Agreement to pay consideration in an amount in excess of $250,000 or (B) that imposes any material obligation on any Acquired Company after the date of this Agreement;
(xv) any Labor Agreement;
(xvi) any Contract pursuant to which any Acquired Company has agreed to provide “most favored nation” status or other similar terms and conditions to any Person;
(ivxvii) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement any Contract pursuant to which the Company or any Subsidiary is a partyhas agreed to provide Services;
(vxviii) all Contracts relating to any acquisitions other Contract that involves outstanding or dispositions of assets of value in excess future payment obligations of $100,000 250,000 or more and is not cancelable by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than without penalty within sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xvxix) all collective bargaining agreements or any other agreement Company Contract not otherwise described in any other subsection of this Section 2.9(a) that would constitute a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with a labor union, labor organization or works councilrespect to the Company.
(b) The Company has either delivered or made available to Parent or Parent’s Representatives or has publicly made available in the Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) database of the SEC and on SEDAR+, a true and complete copy of each Material Contract, including all amendments, waivers and changes thereto. Neither the applicable Acquired Company nor, to the knowledge of the Company, any other party thereto is in material breach of or material default under any Material Contract and, neither the applicable Acquired Company, nor, to the knowledge of the Company, any other party thereto has taken or failed to take any action that with or without notice, lapse of time or both would constitute a material breach of or material default under any Material Contract. Each Material Contract is (i) with respect to the Acquired Company party thereto and the other parties thereto a valid and binding agreement, (ii) binding and in full force and effect, (iii) . Each Material Contract is on arm’s length terms and was entered into in an enforceable obligation of the ordinary course of business, and (iv) enforceable by and against the applicable Acquired Company Group and, to the knowledge of the Company’s Knowledge, each counterparty that is other party thereto, subjectin accordance with its terms, in subject to (i) laws of general application relating to bankruptcy, insolvency and the case relief of this clause debtors and (ivii) rules of law governing specific performance, injunctive relief and other equitable remedies (collectively, the “Enforceability Limitations”). Since January 1, to 2022, the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of the date of this Agreement, Acquired Companies have not received any other party to a Material Contract, is in material written notice regarding any violation or breach or default (whether with under, or without the passage of time intent to terminate or the giving of notice or both) under the terms of not renew, any such Material Contract. The Company Group Contract that has not assigned, delegated or otherwise transferred since been cured. No Acquired Company has waived any of its rights or obligations under any Material Contract or granted any power of attorney with respect theretoContract.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Contracts. (a) Schedule 4.14(a) sets forth 4.18 contains a true, true and complete and accurate list, as list of the date of this Agreement, of all each of the following Contracts as amended (true and complete copies or, if none, reasonably complete and accurate written descriptions of which, together with all amendments and supplements thereto, have been disclosed to date VOLT prior to the execution of this Agreement and are listed in Schedule 4.18) to which are currently in effect (collectively, “Material Contracts”):one or more of TRIPLE-I or any TRIPLE-I SUBSIDIARY is a party or by which any of their Assets is bound:
(i) all Contracts that require annual (excluding Benefit Plans) providing for a commitment of employment having a remaining term of at least one year and requiring payments or expenses incurred by, or annual payments or income to, the Company Group to any individual of base salary in excess of $200,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practices)50,000 per year;
(ii) all sales, advertising, agency, sales promotion, market research, marketing Contracts (excluding Benefit Plans) with any Person containing any provision or similar Contractscovenant prohibiting or materially limiting the ability of TRIPLE-I or any TRIPLE-I SUBSIDIARY to engage in any business activity or compete with any Person in connection with the Business or prohibiting or materially limiting the ability of any Person to compete with TRIPLE-I or any TRIPLE-I SUBSIDIARY in connection with the Business;
(iii) each Contract with any current employee of the Company Group (A) agreement which has continuing obligations for payment of an annual compensation of at least $200,000by its terms purports to create any partnership, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance joint venture or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Companyrelationship;
(iv) all Contracts creating a joint venturewith distributors, strategic alliancedealers, limited liability company manufacturer's representatives, sales agencies or partnership arrangement to which the Company franchises with whom TRIPLE-I or any Subsidiary is a partyTRIPLE-I SUBSIDIARY deals in connection with the Business which in any case involve the payment or potential payment, pursuant to the terms of any such Contract, by or to such other person of more than $50,000 annually;
(v) all collective bargaining or similar labor Contracts relating to covering any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);Employee; and
(vi) all IP Contractsother Contracts (other than Benefit Plans, separately identifying all the Real Property Leases and the insurance policies disclosed elsewhere with respect to the Business and the Contracts described in subparagraph (vii)) that (A) involve the payment or potential payment, pursuant to the terms of any such IP Contracts under which the Company is obligated Contract, by or to pay royalties thereunder TRIPLE-I or any TRIPLE-I SUBSIDIARY of more than $50,000 annually and all such IP Contracts under which the Company is entitled (B) cannot be terminated within two (2) years after giving notice of termination without resulting in any material cost or penalty to receive royalties thereunder;TRIPLE-I or any TRIPLE-I SUBSIDIARY.
(vii) all The following open customer Contracts limiting the freedom of the Company Group (i.e., such Contracts where systems or equipment have not been shipped on or prior to compete in any line of business or industrySeptember 29, 1995).
(1) Master Agreement Contracts with any Person or in any geographic areachains;
(viii2) all Contracts providing for guarantees, with warranty terms of more than 90 days in the U.S. or where such Contract was entered into for the primary purpose of providing indemnification, other more than Standard Contracts6 months overseas;
(ix3) all Contracts with or pertaining to the Company Group to which any Affiliate extended payment terms (calling for payment of less than 65% of the Company Group is a party, other purchase price within 30 days after shipment; or permitting payment of 100% more than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group30 days after acceptance);
(xiii4) all Contracts not cancellable by the Company Group with no giving discounts of more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract15% below U.S. list price;
(xiv5) other than the Equity Incentive Plan Contracts with penalty or liquidated damages clauses;
(6) Contracts containing software licenses which permit unlimited copying and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreementuse; and
(xv7) all collective bargaining agreements Contracts calling for the delivery of products or other agreement with a labor union, labor organization or works councilfeatures which have not been developed as of the Contract date.
(b) Each Material Contract of the above Contracts is (i) in full force and effect and constitutes a legal, valid and binding agreement, (ii) enforceable in full force and effectaccordance with its terms, (iii) is on arm’s length terms and was entered into in the ordinary course of business, and (iv) enforceable by and against the Company Group one or more of TRIPLE-I or a TRIPLE-I SUBSIDIARY and, to the Company’s KnowledgeKnowledge of TRIPLE-I, of each counterparty that is other party thereto; and except as disclosed neither TRIPLE-I nor any TRIPLE-I SUBSIDIARY, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as Knowledge of the date of this AgreementTRIPLE-I, any other party to a Material Contract, such Contract is in material violation or breach of or in default under any such Contract (whether or with notice or without the passage lapse of time or the giving both, would be in violation or breach of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtednesssuch Contract).
Appears in 1 contract
Contracts. (a) Schedule 4.14(a) sets forth a true, complete and accurate list, as As of the date hereof, except as set forth on SECTION 3.11 of this Agreementthe Disclosure Letter, of all the Company is not a party to or bound by any of the following Contracts as amended to date which are currently in effect (collectivelyeach, “Material Contracts”a "MATERIAL CONTRACT"):
(i) all Contracts that require any contract, judgment, injunction, agreement or commitment (A) which contains provisions specifically prohibiting or restricting the Company from competing in any line of business of or with any other Person or from operating in any geographic location or (B) under which the Company has specifically granted to another Person any exclusivity or "most favored nation" right, right of first refusal or similar right, in each case in a manner material to the business of the Company;
(ii) any agreement providing for indemnification, product warranty or similar obligations of the Company;
(iii) any agreement by the Company to guarantee the obligations of any other Person;
(iv) any employment or consulting agreement with an employee or individual consultant providing for guaranteed annual payments or expenses incurred bybase salary, wages, or annual consulting fees in excess of $250,000;
(v) any Benefit Plan under which any of the benefits will be increased or accelerated by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence of any additional subsequent events) or under which the value of any of the benefits will be calculated on the basis of any of the transactions contemplated by this Agreement;
(vi) any lease of personal property having a value in excess of $100,000 individually or $250,000 in the aggregate;
(vii) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $100,000 individually or income to$250,000 in the aggregate;
(viii) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise, in each case having a fair market value in excess of $100,000 individually or $250,000 in the aggregate outside the ordinary course of the Company's business consistent with past practice;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to Indebtedness;
(x) any purchase order or contract for the purchase of materials involving in excess of $100,000 individually or $250,000 in the aggregate;
(xi) any dealer, distribution, marketing, development or joint venture agreement;
(xii) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other agreement for use or distribution of the products, technology or services of the Company;
(xiii) any joint venture agreement or other agreement by which the Company Group has any equity interest in any other Person;
(xiv) any contract (A) containing any license, assignment or covenant with respect to Intellectual Property or (B) which is otherwise royalty-bearing, excluding from such contracts only (I) out-bound customer agreements in the ordinary course of business under which the Company is the licensor and which are substantially in accordance with the Company's standard form agreement which has been provided to Purchaser for payments to the Company not in excess of $200,000 100,000 individually or more $250,000 in the aggregate for the twelve (other than standard purchase 12) months ended December 31, 2006, (II) evaluation, non-disclosure and sale orders professional services agreements entered into in the ordinary course of business consistent with past practices);
under which third parties evaluate the Company's Intellectual Property, and (iiIII) all sales, advertising, agency, sales promotion, market research, marketing or similar Contracts;
(iii) each Contract with any current employee of non-exclusive licenses under which the Company Group is the licensee, which in-licensed technology is not incorporated into the Company products or proposed (Apursuant to an approved product roadmap) which has continuing obligations for payment of an annual compensation of at least $200,000products, and which is not terminable provide for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the Company or any Subsidiary is a party;
(v) all Contracts relating to any acquisitions or dispositions of assets of value not in excess of $100,000 by the Company Group (other than acquisitions individually or dispositions of inventory $250,000 in the ordinary course of business consistent with past practices and other than Contracts aggregate for all users in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into aggregate for the primary purpose of providing indemnificationtwelve (12) months ended December 31, other than Standard Contracts;
(ix) all Contracts with or pertaining 2006 and where the Intellectual Property licensed to the Company Group to which any Affiliate consists of the Company Group is a partycommercially available, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;off-the-shelf software and related items; or
(xxv) all Contracts relating to property any other agreement, contract or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve commitment that requires payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating 100,000 individually or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) $250,000 in the aggregate that are valued at $250,000 or greater;
in any twelve (xii12) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts month period and is not cancellable by the Company Group with no more than cancelable without penalty on sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council' notice.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of business, and (iv) enforceable by and against the Company Group and, to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as As of the date hereof, the Company is not in breach of this Agreement, or default in any other party to a material respect under any Material Contract, is in material breach or default (whether and to Seller's Knowledge, no event has occurred that, with or without the passage notice or lapse of time or the giving of notice both, would result in a breach or both) under the terms of a default in any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations material respect under any Material Contract or granted any power of attorney with respect theretoContract.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Sources: Stock Purchase Agreement (Nuance Communications, Inc.)
Contracts. (a) Section 4.13(a) of the Company Disclosure Schedule 4.14(a) sets forth forth, as of the date hereof, a true, correct and complete list of each Contract (other than any Company Real Property Lease or Benefit Plan) that is in effect and accurate listto which the Company or any Company Subsidiary is a party or which binds their respective properties or assets, and that falls within any of the following categories:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the SEC);
(ii) any Contract for the acquisition, disposition or development of real property (including options to purchase land);
(iii) any settlement, conciliation or similar Contract (A) (1) with any Governmental Entity that has continuing obligations as of the date of this Agreement or (2) that was entered into in the 12 months prior to the date of this Agreement, of all (B) that requires the Company or any of the following Company Subsidiaries to pay any monetary consideration of more than two hundred fifty thousand dollars ($250,000) after the date of this Agreement or (C) that would otherwise limit in any material respect the operation of the Company or any Company Subsidiary as currently operated;
(iv) any joint venture, partnership, or strategic alliance Contract with a Third Party member in which the Company or any Company Subsidiary owns an Equity Interest;
(v) other than Contracts as amended listed in Section 4.13(a)(iv) of the Company Disclosure Schedule, any Contract (A) that relates to date which are currently any completed acquisition, divestiture, merger or similar transaction and (1) contains representations, covenants, indemnities or other obligations that remain in effect (collectively, “Material Contracts”):
(iexcluding any transactions solely among the Company and any wholly owned Company Subsidiary) all Contracts and that require annual payments or expenses incurred byare material to the business of the Company and the Company Subsidiaries, or annual payments or income to, (2) pursuant to which the Company Group or any Company Subsidiary has continuing “earn-out” or other similar contingent payment obligations following the date hereof, (B) for any pending acquisition, directly or indirectly (by merger or otherwise) of $200,000 or more a portion of the assets (other than goods, products or services in the ordinary course of business) or Equity Interests of any Person or (C) that gives any Person the right after the date of this Agreement to acquire any assets of the Company or the Company Subsidiaries (excluding ordinary course purchases of the Company’s goods or products);
(vi) any Contract that (A) contains any covenant limiting in any material respect the ability of the Company or the Company Subsidiaries to engage in any line of business or compete with any Person or in any geographic area, (B) requires the Company or any of the Company Subsidiaries to conduct any business on a “most favored nations” basis with any third party or (C) provides for “exclusivity” or any similar requirement in favor of any third party;
(vii) any Contract relating to Indebtedness of the Company or any Company Subsidiary in an outstanding principal amount in excess of two hundred fifty thousand dollars ($250,000), other than (A) surety bonds issued in the ordinary course of business or (B) any such contract between the Company or any Company Subsidiary, on the one hand, and any other Company Subsidiary, on the other hand;
(viii) any Contract (A) pursuant to which the Company or any Company Subsidiary receives a license to use any material Intellectual Property (other than licenses for “off-the-shelf” or other Software widely available on generally standard purchase terms and sale orders entered into conditions) or (B) pursuant to which the Company or any Company Subsidiary grants to a third party a license to use any material Company Intellectual Property (other than non-exclusive licenses granted to customers and vendors in the ordinary course of business consistent with past practices);
(ii) all sales, advertising, agency, sales promotion, market research, marketing or similar Contracts;
(iiiix) each Contract with any current employee for the lease of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination personal property involving payments or benefits to such employee in excess of two hundred fifty thousand dollars ($60,000 250,000) in any calendar year that are not terminable without penalty or other liability to the Company and the Company Subsidiaries (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement ongoing obligation pursuant to which the Company or any Subsidiary is a party;
(v) all Contracts relating to any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ixthat is not caused by any such termination) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employeewithin 60 days;
(x) all Contracts relating to property employment, independent contractor, consulting, severance or assets (whether real or personal, tangible or intangible) in similar agreements with service providers that are individuals under which the Company Group holds a leasehold interest or any Company Subsidiary is or could become obligated to provide annual compensation or payments in excess of two hundred twenty five thousand dollars (including the Lease$225,000) and which involve payments to cannot be terminated by the lessor thereunder in excess Company or any Company Subsidiary without the payment or provision of $200,000 per yearseverance compensation or benefits or advance notice;
(xi) all Contracts creating or otherwise relating (A) any Contract with a customer where the price is fixed for more than a one-year period and (B) any Contract with any Person which relates to outstanding Indebtedness more than one million dollars (other than intercompany Indebtedness$1,000,000) in the aggregate that are valued at $250,000 annual payments to, or greater;
(xii) all Contracts relating to the voting or control of the equity interests of payments by, the Company Group or the election of directors of and/or the Company Group (other than Subsidiaries for the organizational year ended December 31, 2021 or constitutive documents of with respect to which the Company Group);
(xiii) all Contracts not cancellable by or a Company Subsidiary reasonably expects that it and/or one of its Subsidiaries will receive payments or make payments for the Company Group with no year ended December 31, 2022 of more than sixty one million dollars (60) days’ notice if the effect $1,000,000), in each case of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
any Contract under this subsection (xivB) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation Contract or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was purchase order entered into in the ordinary course of business, and ; and
(ivxii) enforceable by and against any Contract with a Related Party to the Company Group andor any Company Subsidiary, other than Contracts related to the Companyany Person’s Knowledge, each counterparty that is party thereto, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither employment with the Company Group nor, or any Company Subsidiary. Each Contract of the type described in this Section 4.13(a) is referred to the Company’s Knowledge, herein as a “Company Material Contract.” True and complete copies of each Company Material Contract in effect as of the date hereof have been made available to Parent (including pursuant to agreed-upon procedures to protect competitively sensitive information) or publicly filed with the SEC.
(b) Except as would not have and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Material Contract is a legal, valid, binding and enforceable obligation of this Agreementthe Company or the Company Subsidiary party thereto and is in full force and effect (except as may be limited by the Enforceability Exceptions) and (ii) none of the Company, any other party Company Subsidiary or, to a Material Contractthe Knowledge of the Company, any counterparty is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Company Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Sources: Merger Agreement (Trecora Resources)
Contracts. (a) Schedule 4.14(a) sets forth a trueThe Contracts constitute all contracts or agreements, complete and accurate listwhether oral or written, as of relating to the date of this AgreementBusiness or included in the Assets or Assumed Liabilities (but excluding any agreement or contract solely relating to any Excluded Assets or to liabilities that are not Assumed Liabilities), of all of including the following Contracts as amended to date which are currently in effect (collectively, “Material Contracts”):following:
(i) all Contracts that require annual payments any agreement for the purchase of materials, software, supplies, goods, services, equipment or expenses incurred by, or annual payments or income to, other assets relating to the Company Group of $200,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practices)Business;
(ii) all any sales, advertisingdistribution or other similar agreement providing for the sale of materials, agencysupplies, sales promotiongoods, market researchservices, marketing equipment or similar Contractsother assets relating to the Business;
(iii) each Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000partnership, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance joint venture or other obligation; (B) providing for severance similar agreement or post-termination payments arrangement relating to the Business or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the CompanyAssets;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company any agreement relating to the acquisition or partnership arrangement to which disposition of the Company Business or any Subsidiary is a partyof the Assets (whether by merger, sale of stock, sale of assets or otherwise);
(v) all Contracts any agreement relating to indebtedness for borrowed money or the deferred purchase price of property relating to the Business or any acquisitions of the Assets (in either case, whether incurred, assumed, guaranteed or dispositions of assets of value in excess of $100,000 secured by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoingAsset);
(vi) all IP Contractsany option, separately identifying all such IP Contracts under which license (including software license), franchise or similar agreement relating to the Company is obligated to pay royalties thereunder and all such IP Contracts under which Business or the Company is entitled to receive royalties thereunderAssets;
(vii) all Contracts limiting any agency, dealer, sales representative, marketing or other similar agreement relating to the freedom of Business or the Company Group to compete in any line of business or industry, with any Person or in any geographic areaAssets;
(viii) all Contracts providing for guarantees, any agreement that limits the freedom of Predictive or where such Contract was entered into for GI to compete in the primary purpose of providing indemnification, other than Standard ContractsBusiness in any area after the Closing Date;
(ix) all Contracts with any agreement containing any right of first refusal or pertaining similar right relating to the Company Group to which any Affiliate of Business or the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employeeAssets;
(x) all Contracts any agreement pursuant to which Predictive or GI has hired or retained a consultant relating to property the Business or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per yearAssets;
(xi) all Contracts creating any agreement pursuant to which Predictive or otherwise GI is subject to confidentiality or non-disclosure obligations relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 Business or greaterthe Assets;
(xii) all Contracts any agreement under which Predictive or GI agrees to indemnify any party relating to the voting or control of the equity interests of the Company Group Business or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);Assets; or
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty any other agreement, commitment, arrangement or plan directly relating to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (Business or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works councilAssets.
(b) Each Material Contract is (i) a valid and binding agreementagreement of Predictive or GI, (ii) and is in full force and effect, (iii) and neither Predictive, GI nor, to the Knowledge of Predictive or GI, any other party thereto is on arm’s length in default or breach in any material respect under the material terms and was entered into in the ordinary course of business, and (iv) enforceable by and against the Company Group any Contract and, to the Company’s KnowledgeKnowledge of Predictive and GI, each counterparty that is party theretono event or circumstance has occurred that, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of the date of this Agreement, any other party to a Material Contract, is in material breach with notice or default (whether with or without the passage lapse of time or the giving both, would constitute any material event of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect theretodefault thereunder.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing Section 5.12(c) of the transactions contemplated by this Agreement shall not cause Seller Letter sets forth a summary of all of Predictive's or result in an event GI's outstanding proposals and contract renewal activity relating to the Business.
(d) True and complete copies of default under any instruments each Contract have been delivered or Contracts establishing or evidencing any Indebtednessmade available to Buyer.
Appears in 1 contract
Contracts. (a) Schedule 4.14(a) sets Except for contracts set forth a truein the "Exhibit Index" of any Company SEC Filing filed since January 28, complete 2012 and accurate listContracts set forth in Section 4.12 of the Company Disclosure Letter, as of the date of this Agreement, of all of neither the following Contracts as amended Company nor any Company Subsidiary is a party to date which are currently in effect (collectively, “Material Contracts”):or expressly bound by any existing Contract that:
(i) all Contracts is a "material contract" (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC);
(ii) relates to any joint venture, partnership, limited liability or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any joint venture or partnership that require annual payments or expenses incurred byis material to the business of the Company and the Company Subsidiaries, taken as a whole, or annual payments or income to, in which the Company Group owns any voting or economic interest;
(iii) is an indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other Contract providing for or securing indebtedness for borrowed money, trade payables financing arrangements, deferred payment or other Indebtedness (in each case, whether incurred, assumed, guaranteed or secured by any asset) in excess of $200,000 1,000,000;
(iv) prohibits the payment of dividends or distributions in respect of any Equity Interest of the Company or any of the Company Subsidiaries, prohibits the pledging of any Equity Interest of any Company Subsidiary or prohibits the issuance of guarantees by any Company Subsidiary, other than the Existing Credit Agreements;
(v) is a material settlement, conciliation or similar agreement (x) with any Governmental Authority or (y) which would require the Company or any Company Subsidiary to pay consideration of more than $500,000 after the date of this Agreement;
(vi) (A) contains a standstill or similar agreement pursuant to which the Company or any Company Subsidiary has agreed not to acquire assets or securities of a Third Party, or (B) which contains any "non-solicitation", "no hire" or similar provision which restrict the Company or any Company Subsidiary in soliciting, hiring, engaging, retaining or employing such Third Party's current or former employees in a manner or to an extent that would interfere in any material respect with the ordinary course operations of the business of the Company or the Company Subsidiaries;
(vii) relates to any acquisition by the Company or any of the Company Subsidiaries of Equity Interests or any material assets (other than standard purchase acquisitions of inventory or equipment in the ordinary course of business) pursuant to which the Company or any of the Company Subsidiaries has continuing indemnification (other than indemnification obligations with respect to directors and sale orders officers), "earn-out" or other contingent payment or guarantee obligations, in each case, that are reasonably likely to result in payments in excess of $250,000;
(viii) contains any covenant that (A) materially limits the ability of the Company or any Company Subsidiary (or after the Acceptance Time or Effective Time, Parent, the Surviving Corporation, or their respective Subsidiaries) to engage in any line of business, or to compete with any Person or operate at any geographic location, except for radius restrictions that may be contained in Contracts entered into in the ordinary course of business consistent with past practices);
(ii) all salespractice, advertising, agency, sales promotion, market research, marketing or similar Contracts;
(iii) each Contract with any current employee of expressly requiring the Company Group (A) which has continuing obligations for payment and/or any Company Subsidiary to purchase an amount of goods or services from a particular Person in an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee amount in excess of $60,000 (other than COBRA obligations 500,000 annually, or similar requirements under applicable local Law); $1,000,000 in the aggregate, or (CB) providing for a payment could require the disposition of any material assets or benefit upon the consummation material line of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result business of a change of control of the Company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the Company or any Subsidiary is a party;
(v) all Contracts relating to any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard ContractsSubsidiary;
(ix) all Contracts with involves any directors, executive officers (as such term is defined in the Exchange Act) or pertaining to the Company Group to which any Affiliate 5% stockholders of the Company Group is a party, or any of their affiliates (other than the Company or any Contracts relating to such Affiliate’s status as a Company Securityholder Subsidiary) or employeeimmediate family members;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments relates to the lessor thereunder employment of any individual on a full-time or part-time, consulting, or other basis providing for an annual base salary in excess of $200,000 per year200,000;
(xi) all Contracts creating contains a license of Intellectual Property (except for licenses of commercially available software granted to the Company or otherwise relating any Company Subsidiary) that is material to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greaterconduct of the business of the Company and the Company Subsidiaries, taken as a whole;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by its terms calls for aggregate payments by the Company Group with no or any of Company Subsidiaries of more than sixty (60) days’ notice if $1,000,000 over the effect remaining term of such cancellation would result in monetary Contract, except for (A) any such Contract that may be canceled, without any material penalty or other material liability to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary AgreementCompany Subsidiaries, upon notice of 90 days or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or less and (B) any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into purchase orders for merchandise issued in the ordinary course of business; or
(xiii) grants to any Person any right of first offer or right of first refusal to purchase, lease, sublease, use, possess or occupy all or a substantial part of the material assets of the Company or any of the Company Subsidiaries. Each contract of the type described in this Section 4.12(a) and each Contract that is listed as an exhibit to the Company's Annual Report on Form 10-K for the fiscal year ended January 28, 2012 (ivother than those listed under "Expired Contracts" in Section 4.12(b) of the Company Disclosure Letter under which the Company and the Company Subsidiaries do not have any further material obligations or liabilities), is referred to herein as a "Company Material Contract."
(b) Except as set forth in Section 4.12(b) of the Company Disclosure Letter and except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) each Company Material Contract is legally valid and binding on the Company and each Company Subsidiary party thereto, in full force and effect and enforceable by and against the Company Group or a Company Subsidiary in accordance with its terms, subject to the Enforceability Exception, (ii) to the knowledge of the Company, each Company Material Contract is a legally valid and binding obligation of the counterparty thereto, in full force and effect and enforceable against such counterparty in accordance with its terms, subject to the Enforceability Exception, (iii) neither the Company nor any Company Subsidiary, and, to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case knowledge of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of the date of this Agreementno counterparty, is in breach or violation of, or default under, any other party to a Company Material Contract, is in material breach (iv) to the knowledge of the Company, none of the Company or any Company Subsidiary has received written notice of any violation or default under (whether or any condition which with or without the passage of time or the giving of notice would cause such a violation of or bothdefault under) under any Company Material Contract and (v) to the terms knowledge of the Company, the Company has not received any written notice from any counterparty to any Company Material Contract that such counterparty intends to terminate, or not renew, any Company Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing As of the transactions contemplated by date of this Agreement shall not cause Agreement, true and correct copies of all Company Material Contracts (as amended or result in an event modified) are either publicly filed with the SEC or the Company has made available to Parent prior to the date hereof copies of default under any instruments or Contracts establishing or evidencing any Indebtednesssuch Company Material Contracts.
Appears in 1 contract
Contracts. (a) Section 3.11 of the Disclosure Schedule 4.14(alists the following agreements (written or oral) sets forth to which any Acquired Company is a true, complete and accurate list, party as of the date of this Agreement, of all of the following Contracts as amended to date which are currently in effect (collectively, “Material Contracts”)::
(i) all Contracts that require annual any agreement for the lease of personal property from or to third parties providing for lease payments or expenses incurred by, or annual payments or income to, the by any Acquired Company Group in excess of $200,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practices)25,000 per annum;
(ii) all sales, advertising, agency, sales promotion, market research, marketing any agreement for the purchase of products or similar Contractsfor the receipt of services which involves the payment by any Acquired Company of more than the sum of $25,000 per annum;
(iii) each Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000partnership, and which is not terminable for any reason joint venture or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Companylimited liability company agreement;
(iv) any agreement under which any Acquired Company has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness for borrowed money or any capitalized lease obligation, or under which any Acquired Company has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement for the acquisition of a business or entity, or substantially all Contracts creating of the assets of a joint venturebusiness or entity (including by merger or consolidation);
(vi) any agreement concerning noncompetition or nonsolicitation, strategic allianceor an agreement that otherwise materially restricts the ability of any Acquired Company to compete, limited liability company or partnership arrangement to which the any Acquired Company or any Subsidiary is a party;
(vvii) all Contracts relating to any acquisitions agreement for the employment of any individual on a full-time, part-time, consulting or dispositions other basis that is not terminable at will by the applicable Acquired Company and without the payment of assets severance, termination or similar compensation or benefits (other than required by Law) and which agreement requires payment of value amounts after the date hereof in excess of $100,000 by the Company Group (other than acquisitions or dispositions 75,000 of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to base pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic areaper annum;
(viii) all Contracts providing for guaranteesany agreement under which any Acquired Company has advanced or loaned any amount to any of its directors, or where such Contract was entered into for officers, and employees outside the primary purpose Ordinary Course of providing indemnification, other than Standard ContractsBusiness;
(ix) all Contracts with or pertaining to the Company Group to any agreement in which any Affiliate current or former officer, director or stockholder of the Company Group is a partydirectly or indirectly interested, other than including any Contracts relating agreement subject to such Affiliate’s status as a Company Securityholder or employeeSection 5.17;
(x) all Contracts relating to property any settlement, conciliation or assets (whether real or personalsimilar agreement, tangible or intangible) in the performance of which will involve payment after the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder Closing Date of consideration in excess of $200,000 per year;25,000; and
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness any agreement (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control agreements of the equity interests of the type described in subclauses (i) through (x) above) that involves aggregate future payments by any Acquired Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 50,000 per the terms of such contract;
(xiv) annum, other than the Equity Incentive Plan and Contracts an agreement entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any Ordinary Course of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works councilBusiness.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of business, and (iv) enforceable by and against the The Company Group and, has made available to the Company’s KnowledgeBuyer a copy of each written agreement listed in Section 3.10 or Section 3.11 of the Disclosure Schedule (the “Scheduled Agreements”). As of the date hereof, each counterparty that is party thereto, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the neither any Acquired Company Group nor, to the Company’s Knowledge, as knowledge of the date of this AgreementCompany or the Selling Securityholders, any other party to a Material Contractparty, is in material breach or default under, any Scheduled Agreement, and no event has occurred, is pending (whether with or without including the passage transactions contemplated hereby) or, to the knowledge of time or the Company and the Selling Securityholders, is threatened, which, after the giving of notice notice, with lapse of time, or both) under otherwise, would constitute a material breach or default by any Acquired Company or, to the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing knowledge of the transactions contemplated by this Agreement shall not cause or result in an event of default Company and the Selling Securityholders, any other party under any instruments or Contracts establishing or evidencing any Indebtednessa Scheduled Agreement.
Appears in 1 contract
Contracts. (a) Section 3.15(a) of the Company Disclosure Schedule 4.14(a) sets forth a true, correct and complete and accurate list, as of the date of this Agreement, of all list of the following Contracts as amended to date which are currently in effect force to which the Company is a party or under which the Company has continuing liabilities and/or obligations (collectivelyeach, a “Material ContractsCompany Contract”):
(i) all Contracts that require annual payments each Contract with any Employee or expenses incurred by, or annual payments or income to, the Company Group of $200,000 or more individual consultant (other than standard purchase benefit plans, and sale orders entered into in the ordinary course form employment and consulting agreements involving annual compensation of business consistent with past practicesless than $100,000);
(ii) all saleseach Contract relating to the acquisition, advertisingtransfer, agency, sales promotion, market research, marketing sharing or similar Contractslicense of any Company Intellectual Property (other than License Contracts set forth in Section 3.14(e) of the Company Disclosure Schedule but including any out-bound licenses of Company Intellectual Property);
(iii) each Contract with any current employee of the Company Group that (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for contains any reason or no reason upon reasonable notice without payment of any penalty, severance non-competition or other obligation; agreement that prohibits (x) the Company or (y) the Company’s Affiliates (other than the Surviving Corporation), in each case, from participating in any line of business or selling Company products in any geographic area, (B) providing for severance contains a right of first refusal, right of first negotiation or post-termination payments or benefits to such employee right of first offer in excess favor of $60,000 (a party other than COBRA obligations or similar requirements under applicable local Law); or the Company, (C) providing requires the Company to exclusively license to third parties any fields of use for a any Company products, (D) provides for the payment by the Company of any early termination fees or (E) requires or obligates the Company to purchase specified minimum amounts of any product or to perform or conduct research, clinical trials or development services for the benefit of any third party;
(iv) each Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Contract relating to the acquisition, issuance or transfer of any securities;
(vi) bonds, debentures, notes, credit or loan agreements or loan commitments, mortgages or other similar Contracts relating to the borrowing of money or the deferred purchase price of property or binding upon the consummation of the transactions contemplated by this Agreement any properties or any Ancillary Agreement assets (real, personal or as a result of a change of control mixed, tangible or intangible) of the Company;
(ivvii) all Contracts creating a joint ventureeach Contract involving or incorporating any guaranty, strategic allianceany pledge, limited liability company any performance or partnership arrangement to which the Company completion bond or any Subsidiary is a partysurety arrangement;
(vviii) all Contracts each Contract creating any partnership or joint venture;
(ix) each Contract relating to the purchase or sale of any acquisitions product or dispositions other asset by or to, or the performance of any services by or for, any Related Party;
(x) each Contract providing for “earn outs,” “performance guarantees” or other similar contingent payments, by or to the Company of more than $100,000 over the term of any such Contract;
(xi) Contracts for capital expenditures or the acquisition or construction of fixed assets requiring the payment by the Company of an amount in excess of $100,000;
(xii) Contracts for the cleanup, abatement or other actions in connection with any Materials of Environmental Concern, the remediation of any existing environmental condition or relating to the performance of any environmental audit or study;
(xiii) Contracts with material Suppliers;
(xiv) outstanding powers of attorney empowering any Person to act on behalf of the Company; and
(xv) any other Contract that (A) contemplates or involves (1) the payment or delivery of cash or other consideration in an amount or having a value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which aggregate, or (2) the applicable acquisition purchase or disposition or transaction has been consummated and there are no material obligations sale of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guaranteesproduct, or where such Contract was entered into for the primary purpose performance of providing indemnification, other than Standard Contracts;
(ix) all Contracts with services by or pertaining to the Company Group to which any Affiliate of the Company Group is having a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder value in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) 100,000 in the aggregate that are valued at $250,000 aggregate, or greater;
(xiiB) all Contracts relating to the voting or control has a term of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to days and that may not be terminated by the Company Group in excess (without penalty) within sixty (60) days after the delivery of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated a termination notice by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works councilCompany.
(b) The Company has delivered to Parent accurate and complete copies of all written Company Contracts. Each Material Company Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into enforceable by the Company in the ordinary course of businessaccordance with its terms, and after the Effective Time will continue to be legal, valid, binding and enforceable on identical terms. The consummation of the transactions contemplated hereby shall not (iveither alone or upon the occurrence of additional acts or events) enforceable by and against the Company Group and, to result in any payment or payments becoming due from the Company’s Knowledge, each counterparty that is party theretothe Surviving Corporation, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of the date of this Agreement, any other party to a Material Contract, is in material breach Parent or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights Affiliates to any Person or obligations under give any Material Contract Person the right to terminate or granted alter the provisions of any power of attorney with respect theretoCompany Contract.
(c) The Company Group is not currently in compliance in all material respects with all covenantsviolation, including all financial covenants, in all notes, indentures, bonds and other instruments breach or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments Company Contract set forth in this Section 3.15, and, to the Knowledge of the Company, no other Person has violated or Contracts establishing breached, or evidencing committed any Indebtednessdefault under, any Company Contract set forth in this Section 3.15.
(d) To the Knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (i) result in a violation or breach of any of the provisions of any Company Contract set forth in this Section 3.15, (ii) give any Person the right to declare a default or exercise any remedy under any Company Contract set forth in this Section 3.15, (iii) give any Person the right to accelerate the maturity or performance of any Company Contract set forth in this Section 3.15, or (iv) give any Person the right to cancel, terminate or modify any Company Contract set forth in this Section 3.15.
(e) The Company has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Company Contract set forth in this Section 3.15.
(f) The Company has not waived any of its rights in writing under any Company Contract set forth in this Section 3.15.
(g) No Person is renegotiating any amount paid or payable to the Company under any Company Contract set forth in this Section 3.15 or any other material term or provision of any Company Contract set forth in this Section 3.15.
Appears in 1 contract
Contracts. Except as disclosed in the applicable subsection of Schedule 3.18 (a) Schedule 4.14(a) sets forth a true, complete and accurate list, as of the date of this Agreement, of all of the following Contracts as amended to date which are currently is arranged in effect (collectively, “Material Contracts”):
subsections numbered (i) all Contracts that require annual payments or expenses incurred by, or annual payments or income to, the Company Group of $200,000 or more to (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practices);
(iixviii) all sales, advertising, agency, sales promotion, market research, marketing or similar Contracts;
(iii) each Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the Company or any Subsidiary is a party;
(v) all Contracts relating to any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining correspond to the Company Group to which any Affiliate subsections of this Section 3.18), no member of the Company Group is bound by or a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;party to:
(xi) all Contracts relating to property any Contractual Obligation for the purchase, of supplies, goods, products, equipment or assets (whether real other property, or personalfor the receipt of services, tangible or intangible) in each case, the performance of which the Company Group holds will extend over a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess period of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty one year or which provides for (60or would be reasonably expected to involve) days’ notice if the effect annual payments by any member of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract250,000;
(xivii) any Contractual Obligation for the sale of goods, products, equipment or other property, or for the furnishing of services, by any member of the Company Group, the performance of which provides annual payments by any member of the Company Group in excess of $250,000;
(iii) any Contractual Obligation relating to the acquisition or disposition by any member of the Company Group of (A) any business (whether by merger, consolidation or other business combination, sale of securities, sale of assets or otherwise) or (B) any material Asset (other than in the Equity Incentive Plan and Contracts entered into in connection with Ordinary Course of Business);
(iv) any Contractual Obligation concerning or consisting of a partnership, limited liability company, joint venture or similar agreement;
(v) any Contractual Obligation under which the Equity Incentive Plan and Company has permitted any Asset to become subject to the Equity Incentive Plan, all Contracts an Encumbrance (other than a Permitted Encumbrance);
(vi) any Contractual Obligation (A) under which any member of the benefitsCompany Group has created, compensation incurred, assumed or payments guaranteed any Indebtedness or (B) under which any other Person has guaranteed any Indebtedness of the Company Group;
(vii) any Contractual Obligation containing covenants that in any way purport to (A) restrict any business activity (including the solicitation, hiring or engagement of any Person or the vesting thereof) will be increased or accelerated by the consummation solicitation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or customer other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was than Contractual Obligations entered into in the ordinary course Ordinary Course of business, and (ivBusiness) enforceable by and against of any member of the Company Group and, to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of the date of this Agreement, or any other party to a Material Contract, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.Affiliate thereof or
Appears in 1 contract
Contracts. (a) Schedule 4.14(aExcept for this Agreement and the Contracts disclosed in and filed as exhibits to the Filed Company SEC Documents, Section 4.13(a) of the Company Disclosure Letter sets forth a true, true and complete and accurate list, as of the date of this AgreementAgreement Date, of all of and the following Contracts as amended Company has made available to date which are currently in effect (collectivelyParent true and complete copies, “Material Contracts”):of:
(i) all Contracts each Contract that require annual payments or expenses incurred by, or annual payments or income to, would be required to be filed by the Company Group as a “material contract” pursuant to Item 601(b)(10) of $200,000 or more (other than standard purchase and sale orders entered into in Regulation S-K under the ordinary course of business consistent with past practices)Securities Act;
(ii) all saleseach non-competition or other Contract to which the Company or any Company Subsidiary is a party that (A) materially restricts the ability of the Company or its Affiliates, advertisingincluding following the Effective Time, agencyParent and its Affiliates (other than in the case of Parent and its Affiliates, sales promotiondue to the operation of Contracts to which Parent or any of its Affiliates is a party prior to the Effective Time) following the Merger Closing, market researchto compete in any business or with any Person in any geographical area, (B) requires the Company or its Affiliates, including following the Effective Time, Parent and its Affiliates (other than in the case of Parent and its Affiliates, due to the operation of Contracts to which Parent or any of its Affiliates is a party prior to the Effective Time) following the Merger Closing, to conduct any business on a “most favored nations” basis with any third party, (C) grants a third party development rights or marketing or distribution rights with respect to any Product Candidate, (D) requires the Company or any Company Subsidiary to purchase a minimum quantity of goods or supplies relating to any Product Candidate (other than, for clarity, purchase orders providing for a specified quantity of any such goods or supplies), in favor of any third party or (E) obligates the Company or any Company Subsidiary to purchase or otherwise obtain any product or service exclusively from any third party or sell any product or service exclusively to any third party, or otherwise engage in business on an exclusive basis with any third party, or grants any third party exclusive rights to develop or commercialize any Product Candidate, or (F) contains any rights of first refusal, rights of first negotiation, or similar Contractsobligations or restrictions in favor of any third party, including those which provide to any third party an exclusive or preferential right to purchase, lease, sublease, license, sublicense, use, possess or occupy any material assets (including material Company Intellectual Property) of the Company or any Company Subsidiary;
(iii) each Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the Company or any Company Subsidiary receives a material license or covenant not to sue under any Intellectual Property from any third party, except for the following Contracts: (1) off-the-shelf, commercially available or “shrink-wrap” software or computer services agreements (including agreements under which such software is delivered as a party;
(vservice) all Contracts relating to any acquisitions or dispositions of assets of value in excess of $100,000 for which the total amount paid by the Company Group (other than acquisitions or dispositions of inventory and Company Subsidiaries, in the ordinary course of business consistent with past practices aggregate, is less than $1,000,000 and other than Contracts in under which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations transfers of ownership or licenses of Company Intellectual Property to any party thereto ongoing);
third party; (vi2) all IP Contractsopen source software licenses; (3) materials transfer agreements, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder clinical study agreements, non-disclosure agreements, sponsored research agreements, and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete other similar arrangements, in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was each case entered into in the ordinary course of businessOrdinary Course, and in each case that do not (ivA) enforceable by and against transfer ownership of Intellectual Property from the Company Group andor any Company Subsidiary to any third party, (B) grant any exclusive license under any Company Intellectual Property to any third party, (C) grant to any third party a license to use material Company Intellectual Property for the Company’s Knowledgesupply, each counterparty that is manufacturing, or commercialization of products or (D) grant to any third party thereto, subjecta license to use material Company Intellectual Property for the research or development of products (other than, in the case of this clause (ivD), a non-exclusive license to use Company Intellectual Property for such research or development performed on behalf of, or for the benefit of, the Company or any Company Subsidiary); (4) Contracts granting to the Enforceability Exceptions. Neither Company a license, ownership or other rights in or to rights (including rights in trademarks, feedback or other Intellectual Property) that are only incidental to the primary purpose of such Contracts and are not material to the business of the Company Group noror any Company Subsidiary and under which there are no transfers of ownership or licenses of Company Intellectual Property to any third party; (5) Contracts for the provision of goods or services to Company or a Company Subsidiary that grant vendors or service providers of the Company or any Company Subsidiary only a non-exclusive license to rights in connection with, and solely for the purposes of, such vendor’s or service provider’s provision of goods or services to the CompanyCompany or any Company Subsidiary; and (6) employment agreements, invention assignment agreements, advisor agreements, consulting agreements, and other similar agreements entered into in the Ordinary Course that contain transfers of ownership and licenses of Intellectual Property only to the Company or any Company Subsidiary, or if containing licenses of Intellectual Property to the counterparty, contain only nonexclusive licenses to the counterparty for the sole purpose of authorizing performance of such counterparty’s Knowledgeservices for the Company or Company Subsidiary (collectively, as of the date clauses (1) to (6) “Standard IP Contracts”) (for purposes of this Agreement, any Agreement a covenant not to sue or other party to immunity under a Material Contract, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.to Intellectual Property constitutes a license);
Appears in 1 contract
Contracts. (a) Schedule 4.14(a) sets forth a true, 2.11 to the Corporation Disclosure Memorandum contains an accurate and complete and accurate list, as of the date of this Agreement, of all list of the following Contracts to which the Company is a party or by which the Company is bound as amended to date of the Agreement Date and which are currently not otherwise disclosed in effect and/or filed as an Exhibit to the Triller LLC 2024 S-1 (collectivelyeach, a “Material ContractsContract”):
(i) all Contracts each Contract that require annual payments or expenses incurred byrelates to any of the “Listing-related Transactions” and referred to on pages (ii) through (iv) of the Triller LLC 2024 S-1, or annual payments or income to, and each Contract providing for any payment to a financial advisor in connection with the Company Group of $200,000 or more (other than standard purchase and sale orders entered into in initial public offering contemplated by the ordinary course of business consistent with past practices)Triller LLC 2024 S-1;
(ii) all saleseach Contract entered into after January 29, advertising2024 that would have been required to be filed as an Exhibit to the Triller LLC 2024 S-1 if an amendment thereto was filed with the SEC on the date hereof, agency, sales promotion, market research, marketing or similar Contractsincluding those Contracts listed in the Triller LLC 2024 S-1 Exhibit Index as to be filed in a future amendment;
(iii) each material Contract relating to or in connection with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the CompanyReorganization;
(iv) all Contracts creating each Contract relating to or establishing a material joint venture, strategic alliancepartnership, or limited liability company or partnership arrangement to which that involves a sharing of material profits or revenue with any other Person, or that provides for the Company payment of material referral fees or any Subsidiary is a partybounties;
(v) all Contracts relating to each Contract (including for these purposes any acquisitions executed letter of intent, memorandum of agreement or dispositions of assets of value in excess of $100,000 understanding, term sheet or similar document) for the acquisition by the Company Group Corporation of any business or any corporation, partnership, joint venture, limited liability company, association, or other business organization or division thereof (other than acquisitions or dispositions including letters of inventory in the ordinary course of business consistent with past practices intent and other than any such Contracts in under which the applicable acquisition or disposition or transaction Corporation has been consummated and there are no material obligations of any party thereto ongoingongoing indemnification obligations);; and
(vi) all IP Contracts, separately identifying all such IP Contracts under which each Contract for the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom disposition of any significant portion of the Company Group to compete in any line of assets or business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works councilCorporation.
(b) Each Material Contract All Contracts to which the Corporation is (i) a valid party or by which the Corporation is bound are valid, binding, and binding agreement, (ii) enforceable in accordance with their terms and are in full force and effect, (iii) is . The Corporation has performed all obligations imposed on arm’s length terms and was entered into in the ordinary course of businessit under such Contracts, and (iv) enforceable by and against neither the Company Group and, to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group Corporation nor, to the Company’s Knowledge, as Knowledge of the date of this AgreementCorporation, any other party thereto, is in default thereunder, nor is there any event that with notice or lapse of time, or both, would constitute a default by the Corporation or, to the Knowledge of the Corporation, any other party thereunder. There is not, and since the inception of the Corporation there has not been, any material disagreement or dispute with any other party to any Material Contract, nor is there, to the Knowledge of the Corporation, any pending request for amendment of any Material Contract. Neither the Corporation nor any Stockholder has received any notification that any party to a Material ContractContract intends to cancel, terminate, materially modify, refuse to perform, or refuse to renew such Contract (if such Contract is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contractrenewable). The Company Group Corporation has provided to Parent accurate and complete copies of all Material Contracts (that are not assigned, delegated otherwise described or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect theretoreflected in the Triller LLC 2024 S-1) at least three Business Days prior to the Agreement Date.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Contracts. (a) Disclosure. Schedule 4.14(a3.9(a) of Seller's Disclosure Letter sets forth a true, complete and accurate list, as of the date of this Agreement, list of all of the following types of Contracts as amended to date which are currently in effect Seller is a party or by which Seller, its assets, or properties or the Business, is bound or subject (collectively, “together with any Contracts set forth in Schedules 3.8, and 3.14(b). of Seller's Disclosure Letter, the "Material Contracts”"):
(i) all Contracts that require annual payments (or expenses incurred by, or annual payments or income to, the Company Group a group of related Contracts) involving aggregate consideration in excess of $200,000 10,000 per year and which, in each case, cannot be cancelled without penalty or more without advance notice of thirty (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practices)30) days' or more;
(ii) Contracts for the sale of any of the Purchased Assets or for the grant to any Person of any option, right of first refusal or preferential or similar right to purchase any of the Purchased Assets;
(iii) Contracts relating to employment, employee leasing, independent contractors, consulting and other personal service arrangements, and all salesseverance, advertising, agency, sales promotion, market research, marketing change-in-control or similar Contracts;
(iiiiv) each Contract Contracts, including indemnification agreements or any confidentiality, non-solicitation, and non- competition agreements, related to the Business, entered into with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000any current or former employee, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penaltyindependent contractor, severance consultant or other obligation; Representative of Seller, (B) providing for severance any individual related by blood, marriage or post-termination payments adoption to any such person, or benefits to any entity in which any such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); individual owns any equity interest, or (C) providing for a payment or benefit upon the consummation any Affiliate of any of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the Company or any Subsidiary is a partyforegoing;
(v) all Contracts relating to any acquisitions joint ventures or dispositions partnerships of assets of value in excess of $100,000 by Seller, or to the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations ownership by Seller of any party thereto ongoing)operating business or any other Person;
(vi) all IP ContractsContracts relating to any Indebtedness, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunderincluding promissory notes, capitalized leases, pledges or guaranties, security agreements, or conditional sale or title retention agreements, interest rate or commodity hedging agreements, bonds, sureties or letters of credit;
(vii) all Contracts limiting that limit or purport to limit the freedom ability of the Company Group Seller to compete in any line of business or industry, with any Person or in any geographic areaarea or during any period of time;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contractswith any Governmental Authority;
(ix) all Contracts powers of attorney with or pertaining respect to the Company Group to which Business, any Affiliate of the Company Group is a party, other than Purchased Assets or any Contracts relating to such Affiliate’s status as a Company Securityholder or employeeAssumed Liability;
(x) all Contracts any shareholder agreement, proxy, registration rights agreement or any arrangement relating to property or assets (whether real affecting the ownership or personal, tangible voting of the capital stock or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess other equity interests of $200,000 per yearSeller;
(xi) all Contracts creating any local housing authority agreements and related documentation or otherwise relating HUD Section 8 agreements and related documentation, including, without limitation, any such agreements or documentation related to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 new construction, substantial rehabilitation, or greater;loan management set-aside programs; and
(xii) all Contracts relating any other Contract that is material to the voting Purchased Assets or control operation of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company GroupBusiness and not otherwise required to be disclosed pursuant to this Section 3.9(a);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of business, and (iv) enforceable by and against the Company Group and, to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of the date of this Agreement, any other party to a Material Contract, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Sources: Asset Purchase Agreement (Vinebrook Homes Trust, Inc.)
Contracts. (a) Section 4.13(a) of the Disclosure Schedule 4.14(a) sets forth a true, complete and accurate listlist of all Customer Contracts that accounted for more than $660,000 of revenue in the eight-month period ended August 28, 2004 (the “Material Customer Contracts”).
(b) Except pursuant to Leases which are reflected in the Financial Statements or as set forth on Section 4.13(b) of the date of this AgreementDisclosure Schedule, of all none of the following Contracts material tangible Assets is leased by the Company from any third party, whether affiliated or unaffiliated with the Company.
(c) Except as amended listed in Section 4.13(c) of the Disclosure Schedule, the Company is not a party to date which are currently in effect (collectively, “Material Contracts”):any:
(i) all Contracts that require Contract with any present employee, consultant or independent contractor with an annual payments or expenses incurred by, or annual payments or income to, the Company Group salary in excess of $200,000 100,000 (or more (other than standard purchase and sale orders entered into an equivalent amount in the ordinary course of business consistent foreign currency) or that contains any ongoing obligation with past practices)respect to any former employee, consultant or independent contractor;
(ii) all salesContract obligating the Company or any of its Subsidiaries to the future purchase of, advertisingor payment for, agencysupplies, sales promotionproducts, market researchIntellectual Property or services or the use thereof, marketing or similar Contractswith a value of more than $500,000;
(iii) each Representative, distributorship or sales agency Contract with any current employee of the Company Group (A) under which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment 1,000,000 of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits revenue to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement Company or any Ancillary Agreement or as a result of a change of control of its Subsidiaries has been generated during the Companypast two fiscal years;
(iv) all Contracts creating Contract limiting or restraining the Company or any of its Subsidiaries from engaging or competing in any lines of business with any Person;
(v) Contract evidencing the settlement of any investigation, inquiry or proceeding against the Company or any of its Subsidiaries by a joint venture, strategic alliance, limited liability company or partnership arrangement Government Body pursuant to which the Company or any Subsidiary is a party;
(v) all Contracts relating to of its Subsidiaries has any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing)ongoing obligation;
(vi) all IP ContractsLicense, separately identifying all such IP Contracts under which franchise or other similar agreement not otherwise disclosed in Section 4.12(c) of the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;Disclosure Schedule; or
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary IPI Agreement, Jelco Agreements or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Management Buyout Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(bd) Each Material Contract is (iAll of the Contracts identified in Sections 4.13(a), 4.13(b) a valid and 4.13(c) of the Disclosure Schedule are valid, binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of business, and (iv) enforceable by and against the Company Group andor its Subsidiary in accordance with their terms, to except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the Company’s Knowledge, each counterparty that rights of creditors generally and general equity principles (regardless of whether enforceability is party thereto, subject, considered a proceeding at law or in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of the date of this Agreement, any other party to a Material Contract, is in material breach or default (whether with or without the passage of time or the giving of notice or bothequity) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.
(c) The Company Group is and are in compliance in all material respects with all covenantsapplicable Laws, including all financial covenantsand the execution and delivery of this Agreement, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The nor the consummation and closing of the transactions contemplated by this Agreement shall hereby, will not cause conflict with, or result in an event of default or constitute a Default under or require any notice under any instruments of such Contracts. The Company and each of its Subsidiaries have, and, to the Knowledge of the Company, all other parties to such Contracts have, complied with the provisions of such Contracts. Neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any other party to such Contracts, is in Default thereunder, and no notice of any claim of Default has been given to the Company or any of its Subsidiaries. With respect to any of such Contracts establishing that are Leases, neither the Company nor any of its Subsidiaries has received any written notice of cancellation or evidencing termination under any Indebtednessoption or right reserved to the lessor, or any notice of Default, thereunder.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Medvest Holdings Corp)
Contracts. (a) Schedule 4.14(aSection 2.16(a) sets forth a true, complete and accurate list, as of the date of this Agreement, of all of Disclosure Schedule lists the following Contracts as amended to date which are currently in effect agreements (collectively, each a “Material ContractsContract”):) to which the Company is a party:
(i) all Contracts that require annual payments any Contract (or expenses incurred by, group of related Contracts) for the lease of real or annual payments personal property from or income to, to third parties (including each of the Company Group of $200,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practicesLeases);
(ii) all salesany Contract (or group of related Contracts) for the purchase or sale of products or for the furnishing or receipt of services in which the Company has (A) granted “most favored nation” provisions, advertising, agency, sales promotion, market research, marketing (B) agreed to purchase a minimum quantity of goods or similar Contractsservices or (C) agreed to purchase goods or services exclusively from a certain party;
(iii) each any Contract with any current employee of concerning the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason establishment or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result operation of a change of control of the Companypartnership, joint venture or limited liability company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company any Contract (or partnership arrangement to group of related Contracts) under which the Company has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) Indebtedness (including capitalized lease obligations) or under which it has imposed (or may impose) a Security Interest on any Subsidiary is a partyof its assets, tangible or intangible;
(v) all Contracts relating to any acquisitions Contract for the disposition of any significant portion of the assets or dispositions business of assets of value in excess of $100,000 by the Company Group (other than acquisitions sales of products in the Ordinary Course of Business) or dispositions any Contract for the acquisition of material assets or business of any other entity (other than purchases of inventory or components in the ordinary course Ordinary Course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoingBusiness);
(vi) all IP Contractsany employment Contract, separately identifying all such IP Contracts under which consulting Contract, severance Contract (or Contract that includes provisions for the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunderpayment of severance) or retention Contract;
(vii) all Contracts limiting the freedom of the Company Group to compete any settlement Contract or settlement-related Contract (including any Contract in connection with which any line of business or industry, with any Person or in any geographic areaemployment-related claim is settled);
(viii) all Contracts providing for guaranteesany Contract involving any current or former officer, director of the Company or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contractsany Affiliate thereof;
(ix) all any agency, distributor, reseller, OEM, sales representative, franchise or similar Contracts with or pertaining to which the Company Group to is a party or by which the Company is bound (whether the Company has the right as any Affiliate of the Company Group is a partyforegoing in respect of another Person, other than or such Person’s products or services, under such Contract or whether another Person acts as any Contracts relating of the foregoing with respect to any Customer Offering or Contemplated Customer Offering under such Affiliate’s status as a Company Securityholder or employeeContract);
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in any Contract which contains any provisions requiring the Company Group holds a leasehold interest to indemnify any other party (including excluding indemnities contained in licenses of Open Source Materials and agreements for the Lease) and which involve payments purchase, sale or license of products or services entered into in the Ordinary Course of Business pursuant to the lessor thereunder Company’s standard form of terms and conditions), including any such indemnity covering Damages arising in excess connection with a security breach or unauthorized disclosure of $200,000 per yearconfidential information or Personal Information;
(xi) all Contracts creating any Contract (including any statement of work) containing restrictive covenants as to territorial limitations, exclusivity, non-solicitation or otherwise relating non-competition that could reasonably be expected to outstanding Indebtedness (other than intercompany Indebtedness) in have the aggregate that are valued at $250,000 effect of prohibiting or greaterimpairing the conduct of the business of the Company as currently conducted or as currently proposed by the Company to be conducted;
(xii) all Contracts relating to the voting or control any Contract listed in Section 2.14(g), Section 2.14(h), Section 2.14(i), and Section 2.14(l) of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);Disclosure Schedule; and
(xiii) all Contracts any other Contract (or group of related Contracts) not cancellable otherwise disclosed in response to the above clauses in this Section 2.16(a) either (A) involving payment to the Company or payment by the Company Group with no of more than sixty $50,000 within any calendar year, or (60B) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts not entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any Ordinary Course of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works councilBusiness.
(b) Each The Company has delivered to the Buyer a complete and accurate copy of each Material Contract (as amended to date). With respect to each Material Contract: (i) the Material Contract is (i) a valid legal, valid, binding and binding agreement, (ii) enforceable and in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of business, and (iv) enforceable by and effect against the Company Group Company, and, to the Company’s Knowledge, against each counterparty that is other party thereto, subject, in the case of this clause (iv)enforceability, to the Enforceability Exceptions. Neither Bankruptcy and Equitable Remedies Exception; (ii) except as set forth on Section 2.16(b) of the Company Group norDisclosure Schedule, each Material Contract will continue to be legal, valid, binding and enforceable and in full force and effect against the Company, and, to the Company’s Knowledge, against each other party thereto immediately following the Closing in accordance with the terms thereof as in effect immediately prior to the Closing, subject, in the case of enforceability, to the Bankruptcy and Equitable Remedies Exception; and (iii) neither the Company nor, to the Knowledge of the date Company, any other party, is in breach or violation of, or default under, any such Material Contract in any material respect, and no Circumstance has occurred, is pending or, to the Knowledge of this Agreementthe Company, is threatened, which, after the giving of notice, with lapse of time, or otherwise, would constitute a material breach or default by the Company or, to the Knowledge of the Company, any other party to a Material Contract, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.
(c) The Company Group is not a party to any oral Contract or other arrangement which, if reduced to written form, would be required to be listed in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing Section 2.16(a) of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any IndebtednessDisclosure Schedule.
Appears in 1 contract
Contracts. (aSection 3(n) Schedule 4.14(a) sets forth a true, complete and accurate list, as of the date Disclosure Schedule lists the following contracts and other agreements included in the Acquired Assets, and the Seller is not a party to any other contract or other agreement of this Agreement, of all a type listed below and which relates primarily to the business of the following Contracts as amended to date which are currently in effect (collectively, “Material Contracts”):Division:
(i) all Contracts that require annual any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments or expenses incurred by, or annual payments or income to, the Company Group in excess of $200,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practices)50,000 per annum;
(ii) all salesany agreement (or group of related agreements) for the purchase or sale of raw materials, advertisingcommodities, agencysupplies, sales promotionproducts, market researchor other personal property, marketing or similar Contractsfor the furnishing or receipt of services, the performance of which will extend over a period of more than one (1) year or involve consideration in excess of $50,000, or, in the case of any contract for the provision of products or services to customers, is reasonably expected to result in a loss to the Seller;
(iii) each Contract with any current employee agreement concerning a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which the Seller has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $50,000 or under which it has imposed or agreed to the imposition of a Security Interest (other than a Permitted Lien) on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality (other than in the Ordinary Course of Business) or noncompetition;
(vi) any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or arrangement for the benefit of the Company Group current or former Division Employees;
(vii) any collective bargaining agreement pertaining in whole or part to any Division Employees;
(viii) any agreement for the employment of any individual on a full-time, part-time, consulting, or other basis, other than an at-will employment arrangement, or providing severance benefits;
(ix) any agreement under which it has advanced or loaned any amount which has not been repaid in full to any of the Division Employees;
(x) any agreement under which the consequences of a default or termination could reasonably be expected to have a Material Adverse Effect on the Division;
(xi) any marketing, partnership, or co-branding or other agreements with internet portals or other high-traffic internet sites; or
(xii) any other agreement (or group of related agreements) the performance of which involves consideration valued in excess of $50,000. The Seller has delivered to the Buyer a correct and complete copy of each written agreement listed in Section 3(n) of the Disclosure Schedule (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Section 3(n) of the Disclosure Schedule. With respect to each such agreement: (A) which has continuing obligations for payment of an annual compensation of at least $200,000the agreement is legal, valid, binding, enforceable, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligationin full force and effect; (B) providing for severance or post-termination payments or benefits the agreement will not cease to such employee be legal, valid, binding, enforceable, and in excess full force and effect on substantially similar terms as a result of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the Company or any Subsidiary is a party;
(v) all Contracts relating to any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest hereby (including the Leaseassignments and assumptions referred to in Section 2 above); (C) no party is in breach or default, and no event has occurred which involve payments with notice or lapse of time would constitute a breach or default, or permit termination, modification, or acceleration, under the agreement; and (D) to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control Knowledge of the equity interests Seller, no party has repudiated any provision of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works councilagreement.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of business, and (iv) enforceable by and against the Company Group and, to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of the date of this Agreement, any other party to a Material Contract, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Contracts. Section 2.11 of the Company Disclosure Schedule contains a list as of the date of this Agreement of each of the following Contracts to which the Company or a Company Subsidiary is a party, other than Company Plans (each such Contract (x) required to be listed in Section 2.11 of the Company Disclosure Schedule, (y) that is a Company IP License or (z) that is required to be filed as a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) as an exhibit to the Most Recent Company 10-K under the Exchange Act prior to the date of this Agreement (other than any Company Plan), being referred to as a “Material Contract”):
(a) Schedule 4.14(aeach Contract that restricts in any material respect the ability of the Company, any Company Subsidiary or any Affiliate of any of them to (i) sets forth engage or compete in any geographic area or line of business, market or field, or to develop, sell, supply, manufacture, market, distribute, or support any material product or service, or (ii) transact with any Person (or that would so restrict Parent, any Parent Subsidiary or any Affiliate of any of them following the Closing);
(b) each joint venture agreement, partnership agreement or similar agreement with a truethird party;
(c) each material acquisition or divestiture Contract that contains any material indemnification obligations of the Company or a Company Subsidiary or any “earnout” or other material contingent payment obligations that are outstanding obligations of the Company or any Company Subsidiary as of the date of this Agreement;
(d) each Contract evidencing indebtedness for money borrowed by the Company or any Company Subsidiary from a third party lender, complete and accurate listeach Contract pursuant to which any such indebtedness for borrowed money is guaranteed by the Company or any Company Subsidiary, in each case in excess of $250,000;
(e) each Contract expressly limiting or restricting the ability of the Company or any Company Subsidiary (i) to make distributions or declare or pay dividends in respect of their capital stock, membership interests or other equity interests, as the case may be, (ii) to pledge their capital stock or other equity interests, (iii) to issue any guaranty, or (iv) to make loans to the Company or any Company Subsidiary;
(f) each Contract that obligates the Company or any Company Subsidiary to make any loans, or capital contributions to, or investments in, any Person in excess of $250,000 individually;
(g) each Contract that grants a third party any material right of first refusal, first notice, first negotiation or right of first offer or similar right with respect to any material assets, rights or properties of the Company or any Company Subsidiary;
(h) each Contract or series of related Contracts (excluding (i) purchase orders given or received in the ordinary course of business in a manner consistent with past practice and (ii) Contracts between the Company and any wholly owned Company Subsidiary or among any wholly owned Company Subsidiaries) under which the Company or any Company Subsidiary (A) paid in excess of $750,000 in fiscal year 2020, or is expected to pay in excess of $750,000 in fiscal year 2021 or (B) received in excess of $750,000 in fiscal year 2020, or is expected to receive in excess of $750,000 in fiscal year 2021;
(i) each “single source” supply Contract pursuant to which goods or materials are supplied to the Company or a Company Subsidiary from a sole source which is expected to involve payments by the Company and Company Subsidiaries in excess of $250,000 in fiscal year 2021;
(j) each Contract containing any “take or pay”, minimum commitments or similar provisions which, in each case, is expected to involve payments (including penalty or deficiency payments) by the Company and Company Subsidiaries in excess of $250,000 in fiscal year 2021;
(k) each lease involving real property pursuant to which the Company or any Company Subsidiary is required to pay a monthly base rental in excess of $50,000;
(l) each lease or rental Contract involving personal property (and not relating primarily to real property) pursuant to which the Company or any Company Subsidiary is required to make rental payments in excess of $25,000 per month (excluding leases or rental Contracts for office equipment entered into in the ordinary course of business in a manner consistent with past practice);
(m) each Contract relating to the acquisition, sale or disposition of any business unit or product line of the Company or any Company Subsidiary and with any outstanding obligations that are material to the Company and the Company Subsidiaries, taken as a whole, as of the date of this Agreement;
(n) any Government Contract with any outstanding obligations under which the Company or the Company Subsidiaries received in excess of $750,000 in fiscal year 2020, or is expected to receive in excess of all $750,000 in fiscal year 2021;
(o) each Contract with any material “most favored nation” provision or that otherwise requires the Company or any Company Subsidiary (or, following the Closing, would require Parent or any Parent Subsidiary) to conduct business with any Person on a preferential or exclusive basis, or that includes a price protection provision in favor of the following Contracts as amended counterparty to date which are currently in effect such Contract;
(collectivelyp) each settlement agreement entered into since January 1, “Material Contracts”):
2019 (i) all Contracts with a Governmental Entity that require annual payments imposes material ongoing obligations or expenses incurred by, or annual payments or income to, restrictions on the Company Group or any Company Subsidiary; (ii) that requires the Company or any Company Subsidiary to pay more than $250,000 in excess of $200,000 insurance coverage after the date of this Agreement; or more (other than standard iii) that imposes any material restrictions on the business of the Company or any Company Subsidiary after the date of this Agreement;
(q) each Contract (excluding purchase and sale orders entered into given or received in the ordinary course of business in a manner consistent with past practices);practice) with any Top Customer, Top Distributor or Top Supplier of the Company and the Company Subsidiaries; and
(ii) all sales, advertising, agency, sales promotion, market research, marketing or similar Contracts;
(iiir) each Contract with any current employee relating to the creation of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 a Lien (other than COBRA obligations or similar requirements under applicable local Law); or (CCompany Permitted Encumbrances) providing for a payment or benefit upon the consummation with respect to any material asset of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the Company or any Subsidiary is a party;
(v) all Contracts relating to any acquisitions Company Subsidiary. Except as, individually or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices aggregate, has not had and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and would not reasonably be expected to have a Company Material Adverse Effect, there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which existing breaches or defaults on the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom part of the Company Group to compete in or any line of business or industryCompany Subsidiary under any Material Contract, with any Person or in any geographic area;
(viii) all Contracts providing for guaranteesand, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate knowledge of the Company Group is a partyCompany, other than any Contracts relating to such Affiliate’s status as a Company Securityholder there are no existing breaches or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated defaults on the basis of, the transactions contemplated by this Agreement or part of any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Person under any Material Contract. Each Material Contract is (i) a valid and binding agreementvalid, (ii) in full force and effecthas not been terminated prior to the date of this Agreement, (iii) is on arm’s length terms and was entered into in the ordinary course of business, and (iv) enforceable by and against the Company Group or the applicable Company Subsidiary that is a party to such Material Contract, and, to the knowledge of the Company’s Knowledge, each counterparty that is party enforceable against the other parties thereto, subjectin each case subject to the General Enforceability Exception, and, in each case, except as, individually or in the case aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect. Prior to the date of this clause (iv)Agreement, to the Enforceability Exceptions. Neither the Company Group nor, has made available to the Company’s Knowledge, Parent accurate and complete copies of each Material Contract in effect as of the date of this Agreement, together with all amendments and supplements thereto in effect as of the date of this Agreement (excluding purchase orders given or received in the ordinary course of business in a manner consistent with past practice). As of the date of this Agreement, no Top Customer, no Top Distributor and no Top Supplier has canceled, terminated or substantially curtailed its relationship with the Company or any other party Company Subsidiary, given written notice to a Material Contract, is in material breach the Company or default (whether with or without the passage of time or the giving of notice or both) under the terms any Company Subsidiary of any such Material Contract. The intention to cancel, terminate or substantially curtail its relationship with the Company Group has not assignedor any Company Subsidiary, delegated or otherwise transferred or, to the knowledge of the Company, threatened in writing to do any of its rights or obligations under any Material Contract or granted any power of attorney with respect theretothe foregoing.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Sources: Merger Agreement (Bioventus Inc.)
Contracts. (a) Schedule 4.14(a5.8(a) sets forth a true, true and complete and accurate listlist of, as of the date hereof, all Contracts (other than Scheduled Contracts, Construction Contracts and any Contracts that constitute or relate primarily to Excluded Assets) that involved payment or receipt by any Company or any Company Subsidiary of this Agreementmore than $100,000 in the twelve (12) calendar months ended November 30, 2015.
(b) Schedule 5.8(b) sets forth a true and complete list of, as of the date hereof, all Contracts (other than Scheduled Contracts, Contracts set forth on Schedule 5.8(a) and any Contracts that constitute or relate primarily to Excluded Assets) that require the payment of more than $100,000 in any 12-month period ending after the Closing Date and are not terminable without penalty on ninety (90) days’ notice or less.
(c) Schedule 5.8(c) sets forth a true and complete list of, as of the date hereof, of all of the following Contracts as amended (other than Scheduled Contracts or any Contracts that constitute or relate primarily to date which are currently in effect (collectivelyExcluded Assets), “Material Contracts”):which:
(i) all Contracts that require annual payments expressly provide for a remedy of specific performance with respect to the Companies’ or expenses incurred byany Company Subsidiary’s obligation to purchase or sell real property;
(ii) provide for the guarantee of the obligations of customers, suppliers, officers, directors, employees, Affiliates or annual payments or income to, the Company Group of $200,000 or more others (other than standard purchase and sale orders entered into any of the Companies or the Company Subsidiaries);
(iii) are partnership, joint venture or similar agreements (other than for any Company Subsidiary or Specified Entity, all of which are addressed under Section 5.1(d));
(iv) are contracts, agreements or instruments regarding acquisitions or dispositions of a material portion of the assets of any Company or any Company Subsidiary that were consummated after January 1, 2014 other than in the ordinary course of business consistent with past practices);
(ii) all sales, advertising, agency, sales promotion, market research, marketing or similar Contracts;
(iii) each Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the Company or any Subsidiary is a partybusiness;
(v) all Contracts relating to are contracts, agreements or instruments which contain provisions restricting any acquisitions Company or dispositions of assets of value in excess of $100,000 by the any Company Group (other than acquisitions Subsidiary from conducting or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete competing in any line of business or industry, with any Person or in any geographic area;
(vi) involve any standstill or similar arrangement;
(vii) grant to a Company or a Company Subsidiary an option, right of first refusal, first offer or first negotiation, including with respect to any Contract Property;
(viii) all Contracts providing for guarantees, contain “requirements” provision or where such Contract was entered into for the primary purpose other provisions obligating a Company to purchase or obtain a minimum or specified amount of providing indemnification, other than Standard Contractsany product or service from any Person;
(ix) all Contracts with contain minimum sales or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;volume provisions; or
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the any Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary AgreementCompany Subsidiary has granted any exclusive marketing, sales representative relationship, franchising consignment or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or distribution right to any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works councilthird party under.
(bd) Each Material Contract is (i) a valid and binding agreementThe Companies, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of business, and (iv) enforceable by and against the Company Group Subsidiaries and, to the knowledge of the Companies, the Specified Entities have complied in all material respects with the undertakings, covenants and obligations under the Material Contracts. With respect to all Material Contracts, neither any Company’s Knowledge, each counterparty that is party thereto, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the any Company Group Subsidiary nor, to the Company’s Knowledge, as knowledge of the date of this AgreementCompanies, any Specified Entity or any other party to a Material Contract, any such contract is in material breach thereof or default (whether thereunder and there does not exist thereunder any event which, with or without the passage of time or the giving of notice or both) under the terms lapse of time, would constitute such a breach or default by any Company, any Company Subsidiary or, to the knowledge of the Companies, any Specified Entity or any other party, in each case, except for such breaches, defaults and events as to which requisite waivers or consents have been obtained or which would not, individually or in the aggregate, reasonably be expected to be material to the Purchased Assets or the operation of the Business, in each case, taken as a whole. On or prior to the date hereof, the Companies have made available to the Buyer a true and complete copy of each Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, amendments thereto in all notes, indentures, bonds and other instruments effect on or Contracts establishing or evidencing any Indebtedness. The consummation and closing of prior to the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtednessdate hereof.
Appears in 1 contract
Contracts. (a) Schedule 4.14(aSection 3.15(a) sets forth of the Company Disclosure Letter lists (with specific reference to the subsection of this Section 3.15(a) to which it relates) each of the following Contracts and agreements (other than any lease of Company Leased Real Property and Contracts and agreements relating to Intellectual Property) to which the Company or any of its Subsidiaries is a trueparty, complete and accurate listsubject to or bound, that is in effect as of the date of this AgreementAgreement (each such Contract or arrangement, of all of together with any such Contracts or arrangements entered into after the following Contracts as amended to date which are currently in effect (collectivelyhereof, collectively being “Material Contracts”):
(i) all Contracts that require annual payments any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K), whether or expenses incurred by, or annual payments or income to, not filed by the Company Group of $200,000 or more (other than standard purchase and sale orders entered into in with the SEC, made outside the ordinary course of business consistent or inconsistent with past practices)practice;
(ii) all salesany employment or consulting Contract (in each case with respect to which the Company or an Affiliate has continuing obligations as of the date hereof) with any current or former (A) officer of the Company, advertising(B) member of the Board, agency, sales promotion, market research, marketing or (C) Business Employee or independent contractor of the Company providing for an annual compensation in excess of $250,000 or providing for severance or similar Contractsbenefits in an amount in excess of $250,000;
(iii) each Contract with any CBA covering or pertaining to any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the CompanyBusiness Employee;
(iv) all Contracts creating a any joint venture, partnership or strategic alliancealliance contract or investment agreement, limited liability company in each case related to the formation, creation, operation, management or control of any partnership arrangement or joint venture in which the Company or any of its Subsidiaries owns any partial interest and that is material to the business of the Company and its Subsidiaries, taken as a whole;
(v) any settlement, conciliation or similar contract which would require the Company or any of its Subsidiaries to pay consideration of more than $5,000,000 (after taking into consideration any insurance proceeds available to the Company or any of its Subsidiary, as applicable, in respect thereof) or to satisfy any material non-monetary obligations, in each case after the date of this Agreement;
(vi) any Contract that contains any covenant limiting the ability of the Company or any of its Subsidiaries, as applicable, to engage in any line of business or compete with any Person or in any geography or not to engage in any activity or business, or pursuant to which any benefit is required to be given or lost as a result of so competing or engaging;
(vii) any Contract that requires consent, approval or waiver of, or notice to, a Governmental Entity or other third party in the event of or with respect to the Transactions (including the consummation of the exercise of the option of the Brookfield GP Investor to own a majority of the interests of the General Partner), including in order to avoid termination of or loss of a benefit under any such contract;
(viii) each Contract under which the Company or any of its Subsidiaries (A) has incurred any Indebtedness that is currently owing or pursuant to which any Person has provided a commitment to make a loan or advance to the Company or any of its Subsidiaries, (B) has given any Guarantee or (C) has obligations (payment, performance or otherwise) that have been Guaranteed by the Parent and its Subsidiaries (other than the Company and its Subsidiaries);
(ix) each Contract under which (A) the Company has agreed to indemnify any Person or (B) Parent has agreed to indemnify (x) the Company, (y) the Company’s Subsidiaries or (z) any other Person in respect of the business of the Company or the Company’s Subsidiaries;
(x) each Contract creating or granting a Lien (including Liens upon properties acquired under conditional sales, capital leases or other title retention or security devices);
(xi) any Contract that grants any right of first refusal, right of first offer, right of first negotiation or similar right in favor of a party other than the Company or its Subsidiaries;
(xii) any Contract that obligates the Company or any of its Subsidiaries to conduct business on an exclusive or preferential basis or that contains a “most favored nation” or similar covenant with any third party or upon consummation of the Transactions will obligate the Company, the Investor or any of their respective Subsidiaries or Affiliates to conduct business on an exclusive or preferential basis or that results in a “most favored nation” or similar covenant with any third party;
(xiii) each Contract containing any provisions (A) dealing with a “change of control” or similar event with respect to the Company or any of its Subsidiaries, (B) prohibiting or imposing any restrictions on the assignment of such contract or any portion thereof by the Company or any of its Subsidiaries to any other Person (without regard to any exception permitting assignments to Subsidiaries or Affiliates), or (C) having the effect of providing that the consummation of any of the Transactions or compliance by the Company with the provisions of this Agreement or the Related Agreements (alone or in combination with any other event) or the execution, delivery of effectiveness of this Agreement or the Related Agreements (alone or in combination with any other event) will conflict with, result in violation or breach of, or constitute a default under (with or without notice or lapse of time, or both), such contract or give rise under such contract to any right of, or result in, termination, right of first refusal, amendment, revocation, cancellation or acceleration, or loss of a benefit, or the creation of any Lien in or upon any of the properties or assets of the Company or any of its Subsidiaries, or to any increased, guaranteed, accelerated or additional rights or entitlements of any Person;
(xiv) any Contract (A) for the acquisition, directly or indirectly (by merger or otherwise) of a material portion of the assets (other than goods, products or services in the ordinary course) or capital stock or other equity interests of any Person for aggregate consideration in excess of $10,000,000 and that has not closed prior to the date hereof or pursuant to which the Company or any Subsidiary is of its Subsidiaries has continuing indemnification (other than indemnification obligations with respect to current or former directors and officers), “earn-out” or other similar contingent payment obligations that are reasonably expected to exceed $10,000,000 in the aggregate after the date hereof or (B) gives any Person the right to acquire any assets of the Company or any of its Subsidiaries (excluding ordinary course commitments to purchase goods, products or services) after the date hereof with a partytotal consideration of more than $10,000,000;
(vxv) all Contracts relating to each Contract between the Company or any acquisitions of its Subsidiaries, on the one hand, and a customer of the Company or dispositions any of assets of value its Subsidiaries, on the other, which Contract involves consideration in excess of $100,000 by 10,000,000 and is (A) in connection with or related to the Company Group FPSO segment or (other than acquisitions B) in connection with or dispositions of inventory in related to the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing)shuttle tanker segment;
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(viixvi) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which evidencing any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary AgreementArrangements; and
(xvxvii) all collective bargaining agreements any license or other agreement Contract with respect to Intellectual Property, except for licenses of commercially-available software with a labor union, labor organization replacement cost or works councilaggregate annual license and maintenance fees of less than $100,000.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of business, and (iv) enforceable by and against the Company Group and, to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of the date of this Agreement, any other party to a Material Contract, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Sources: Investment Agreement (Teekay Offshore Partners L.P.)
Contracts. (a) Except for this Agreement, the Contracts filed as exhibits to the Company SEC Documents, the Company 401 (k) Plans, the Company Benefit Plans, the Company Pension Plans, the Company Stock Plans, the ESPP, or any Contract terminable by any party thereto on 90 days’ or less notice, Part 3.09(a) of the Disclosure Schedule 4.14(a) sets forth a truetrue and complete list of, complete as of the date hereof:
(i) each Contract that is or would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K promulgated under the Securities Act or disclosed by the Company as a “material contract” on a current report on Form 8-K;
(ii) each Contract that contains covenants binding upon the Company or any of its Subsidiaries that materially restrict the ability of the Company or any of its subsidiaries (or which, following the consummation of the Merger, would reasonably be expected to materially restrict the ability of the Surviving Corporation) to compete in any business or with any person or in any geographic area that, in each case, are material to the Company and accurate listits Subsidiaries, taken as a whole, as of the date of this Agreement, of all of the following Contracts as amended except for Leases and any such Contract that may be canceled without any penalty or other liability to date which are currently in effect (collectively, “Material Contracts”):
(i) all Contracts that require annual payments or expenses incurred by, or annual payments or income to, the Company Group or any of $200,000 its subsidiaries upon notice of sixty (60) days or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practices);
(ii) all sales, advertising, agency, sales promotion, market research, marketing or similar Contractsless;
(iii) each material Contract to which the Company or any of its Significant Subsidiaries is a party that constitutes a collective bargaining agreement or similar labor agreement with any current labor organization, works council, trade union or other employee representatives or employee representative body representing, or to the Company’s Knowledge, purporting to or seeking to represent any Employee (any such material Contract, a “Collective Bargaining Agreement”);
(iv) other than with respect to any partnership that is wholly owned by the Company or any of its Subsidiaries, each Contract that is a joint venture, partnership, limited liability or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture, in each case that is material to the business of the Company Group and its Subsidiaries, taken as a whole;
(Av) each Contract that is an indenture, credit agreement, loan agreement, security agreement, guarantee, bond or similar Contract pursuant to which has continuing obligations for payment any Indebtedness of an annual compensation the Company or any of at least $200,000its Subsidiaries, and which is not terminable for any reason whether as borrower or no reason upon reasonable notice without payment of any penaltylender, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in each case in excess of $60,000 (25,000,000, is outstanding, other than COBRA obligations any such Contract between or similar requirements under applicable local Law); among any of the Company and any of its Subsidiaries;
(vi) each Contract, the value of which exceeds $25,000,000, that obligates the Company or (C) providing for any of its Subsidiaries to conduct business on a payment preferential, equal or benefit exclusive basis with any third party or upon the consummation of the transactions contemplated by this Agreement Merger will obligate Parent, the Surviving Corporation or any Ancillary Agreement of their respective Subsidiaries to conduct business on a preferential, equal or as a result exclusive basis with any third party;
(vii) each Contract that limits the payment of a change dividends or distributions in respect of control the capital stock of the Company or any of its Subsidiaries, prohibits the pledging of the capital stock of the Company or any Subsidiary of the Company or prohibits the issuance of guarantees by the Company or any Subsidiary of the Company;
(ivviii) all each Contract that by its terms calls for aggregate payments by the Company and its Subsidiaries under such Contract of more than $25,000,000 over the remaining term of such Contract (other than this Agreement, Contracts creating subject to clause (v) above, purchase orders for the purchase of inventory and/or equipment in the Ordinary Course of Business or Leases);
(ix) each Contract that is a joint venturematerial settlement, strategic alliance, limited liability company conciliation or partnership arrangement similar agreement that is with any Governmental Authority;
(x) each Contract with respect to any acquisition and divestiture pursuant to which the Company or any Subsidiary is a party;
(v) all Contracts relating of its Subsidiaries has continuing indemnification, “earn-out” or other contingent payment obligations, in each case, that would reasonably be expected to any acquisitions or dispositions of assets of value result in payments in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;15,000,000; and
(xi) all Contracts creating each Contract that is a material exclusive license with respect to a trademark or otherwise relating patent owned by the Company or its Subsidiaries, and any other material Contract that contains a license to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate Company Intellectual Property that are valued at $250,000 or greater;
(xii) all Contracts relating is material to the voting or control conduct of the equity interests operation of the business of the Company Group or the election of directors its Significant Subsidiaries. Each Contract of the Company Group (other than the organizational or constitutive documents of type described in this Section 3.09(a), filed as an exhibit to the Company Group);
(xiiiSEC Documents as a “material contract” pursuant to Item 601(b)(10) all Contracts not cancellable of Regulation S-K promulgated under the Securities Act or disclosed by the Company Group with no more than sixty (60on a current report on Form 8-K as a “material contract,” whether or not set forth on Part 3.09(a) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefitsDisclosure Schedule, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with is referred to herein as a labor union, labor organization or works council“Material Contract.”
(b) Each Material Contract is (i) a valid and binding agreementon the Company and each of its Subsidiaries party thereto and, (ii) to the Knowledge of the Company, each other party thereto, and is in full force and effecteffect and enforceable in accordance with its respective terms, subject to the Bankruptcy and Equity Exception, except (iiii) is on arm’s length terms and was entered into to the extent that any Material Contract expires in the ordinary course of businessaccordance with its terms, and (ivii) enforceable by for such failures to be valid and against binding or to be in full force and effect that would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) neither the Company Group andnor any of its Subsidiaries, or to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case Knowledge of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of the date of this Agreement, any other party to a Material Contractparty, is in material violation or breach of or in default (whether with or without nor does there exist any condition which upon the passage of time or the giving of notice would result in a violation or bothbreach of, or constitute a default under, or give rise to any right of termination, amendment, cancellation, acceleration or loss of benefits, or result in the creation of any Lien upon any of the properties, rights or assets of the Company or any of its Subsidiaries) under any Material Contract to which it is a party or by which it or any of its properties, rights or assets is bound, and (ii) no other party to any such Material Contract has, to the Knowledge of the Company, alleged that the Company or any Subsidiary is in violation or breach of, or in default under, any such Material Contract or has notified the Company or any Subsidiary of an intention to modify any material terms of of, or not to renew, any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Contracts. (a) Schedule 4.14(aSection 4.10(a) sets forth of the Company Disclosure Letter lists all of the following Contracts to which the Company or any Target Company is a true, complete and accurate list, party as of the date of this Agreement, of all of the following Contracts as amended to date which are currently in effect Agreement (other than Real Property Leases and Employee Benefit Plans) (collectively, “Specified Material Contracts”):
(i) all Contracts that require annual any Contract which has not been entirely fulfilled or performed as of the date of this Agreement and under which payments by (or expenses incurred by, on behalf of) or annual payments or income to, to the Company Group or any Target Company were made in excess of $200,000 or more 5,000,000 for the twelve (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practices)12) month period ended December 31, 2020;
(ii) all salesany Contract which has not been entirely fulfilled or performed as of the date of this Agreement for capital expenditures or the acquisition or construction of fixed assets involving future payments in excess of $7,500,000, advertising, agency, sales promotion, market research, marketing or similar Contractsin the aggregate;
(iii) each Contract with any current employee loan agreement, credit agreement, Contract, note, debenture, bond, indenture, mortgage, security agreement, pledge or other similar agreement under which any Indebtedness of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for or any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee Target Company in excess of $60,000 (other than COBRA obligations 3,500,000 is outstanding or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Companymay be incurred;
(iv) any Contract that relates to an acquisition or divestiture of assets that are material to the operation of the business of the Company and the Target Companies, taken as a whole, that contains outstanding covenants, indemnities or other obligations to be performed that would reasonably be likely to be material to the Company and the Target Companies, taken as a whole;
(v) any material partnership or joint venture agreements;
(vi) each Contract pursuant to which a license is granted by or to the Company or a Target Company to any material Intellectual Property, other than Contracts (x) concerning generally commercially available software or other technology or (y) in which grants of rights to use Intellectual Property are incidental and not material to performance under the agreement; or
(vii) any Contract which has not been entirely fulfilled or performed limiting or restraining in any material respect the Company or any Target Company from engaging or competing in any manner, in any location or in any business.
(b) The Company has made available to Purchaser true and complete copies of (i) all Specified Material Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement and (ii) all of the following types of Contracts to which the Company or any Subsidiary Target Company is a party and which have not been entirely fulfilled or performed as of the date of this Agreement (other than Real Property Leases and Employee Benefit Plans) (the contracts described in clauses (i) through (vi) below, together with the Specified Material Contracts, the “Material Contracts”):
(i) any Contract that grants rights of first refusal, rights of first negotiation or similar rights, or most-favored nations rights, to any third party, which rights are material to the Business taken as a whole;
(vii) all Contracts relating any Contract that (A) requires the Company or a Target Company to purchase its total requirements for any acquisitions product or dispositions of assets of value services from any Person or (B) contains “take or pay” provisions or minimum purchase requirements that would apply to purchases by the Company or a Target Company after the Closing, in each case which obligations are material to the Business taken as a whole;
(iii) any material Contract that has as a counterparty any Governmental Authority;
(iv) any Contract that provides for severance, change in control, termination, or similar pay in excess of $100,000 by the Company Group (to any current or former directors, officers, employees or consultants or other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom independent contractors of the Company Group to compete in any line of business or industryand the Target Companies, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts have not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) been paid in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of business, and (iv) enforceable by and against the Company Group and, to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of the date of this Agreement;
(v) any material Contract with any works council, labor union, employee representatives or other labor organization or group of employees or body representing any Company Employees; and
(vi) any Contract with any Major Supplier or any Major Customer (excluding purchase orders).
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Business taken as a whole, (i) each of the Material Contracts is in full force and effect and there exists no default under any such Material Contracts by the Company or the Target Companies or, to the Knowledge of the Company, the other parties thereto, and (ii) neither the Company nor any Target Company has received written notice of any termination, default or event that with notice or lapse of time, or both, would constitute a default thereunder by the Company or any Target Company party to any such Material Contract. As of the date of this Agreement, neither the Company nor any of the Target Companies or, to the Knowledge of the Company, any other party to a any Material Contract, is in material breach has exercised any termination rights or default (whether with or without the passage provided written notice of time or the giving of notice or both) under the terms of any such Person’s intent to terminate such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any in each case other than termination at the end of such Material Contract’s term in accordance with its rights or obligations under any Material Contract or granted any power of attorney with respect theretoterms.
(cd) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing As of the transactions contemplated by Closing, all Contracts between the Company or any Target Company, on the one hand, and the employees of the Company listed on Section 4.10(d) of the Company Disclosure Letter, on the other hand, entered contemporaneously with this Agreement shall not cause be in full force and effect, and the non-disclosure or result in an event of default non-competition obligations or other restrictive covenants under any instruments such Contract shall not have been amended or Contracts establishing otherwise modified or evidencing any Indebtednesswaived and shall continue for the benefit of Purchaser pursuant to its terms.
Appears in 1 contract
Contracts. Except as set forth in Schedule 3.10 attached hereto, true, correct and complete copies of which referenced items have been delivered to Buyer (any such contracts are referred to collectively as the "Contracts" and individually as a "Contract"), the Company is not a party to or bound by any of the following:
(a) Schedule 4.14(a) sets forth a trueany agreement or contract, complete and accurate list, as of the date of this Agreement, of all of the following Contracts as amended to date which are currently in effect (collectively, “Material Contracts”):
(i) all Contracts that require annual payments whether written or expenses incurred byoral, or annual payments any other obligation of any kind to or income from any person or entity regarding, or in any way related to, the Company Group of $200,000 or more (other than standard purchase and sale orders entered into any ownership interest in the ordinary course of business consistent with past practices);
(ii) all sales, advertising, agency, sales promotion, market research, marketing or similar Contracts;
(iii) each Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(ivb) all Contracts creating a joint venturecontract for the purchase or sale of services, strategic allianceequipment, limited liability company inventory, materials, supplies, or partnership arrangement any capital item or items, (i) pursuant to which the aggregate financial obligation of the Company may exceed $5,000 in the aggregate, or any Subsidiary (ii) which is a partynot terminable by the Company without penalty upon no more than 30 days' notice;
(vc) all Contracts relating to any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements agreement or other agreement with a any labor union, union or labor organization or works council.any employment, consulting, severance, bonus, deferred compensation or similar agreement;
(bd) Each Material Contract is agreement, indenture or other instrument relating to the borrowing of money or guaranty of any obligation for the borrowing of money;
(e) tenancy, lease, license or similar agreement relating to property;
(f) insurance policies naming the Company as an insured or beneficiary or as a loss payee, or for which the Company has paid all or part of the premium;
(g) any instrument or agreement relating to indebtedness by way of lease-purchase arrangements, conditional sale, guarantee or other undertakings on which others rely in extending credit, any joint venture agreements or any chattel mortgages or other security arrangements;
(h) any agreement or contract with, or any obligation to or from, an Affiliate, or any Affiliate of any Seller. For purposes of this Agreement, "Affiliate" shall mean: any person or entity (i) a valid that directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with, the person or entity involved, including, without limitation, officers and binding agreementdirectors, (ii) that directly or beneficially owns or holds 10% or more of any equity interest in full force and effectthe person or entity involved, or (iii) is on arm’s length terms and was entered into in the ordinary course 10% or more of business, and whose voting securities (iv) enforceable by and against the Company Group and, to the Company’s Knowledge, each counterparty that is party thereto, subject, or in the case of this clause (iv)a person which is not a corporation, to 10% or more of any equity interest) is owned indirectly or beneficially by the Enforceability Exceptionsperson or entity involved. Neither As used herein, the Company Group norterm "control" shall mean possession, to the Company’s Knowledgedirectly or indirectly, as of the date of this Agreement, any other party power to a Material Contract, is in material breach direct or default (whether with or without cause the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing direction of the transactions contemplated management or policies of a person or entity, whether through ownership of securities, by this Agreement shall not cause contract or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.otherwise; or
Appears in 1 contract
Sources: Merger Agreement (Launch Media Inc)
Contracts. (ai) Schedule 4.14(aExcept as set forth in Section 5.1(s) sets forth a true, complete and accurate listof the Company Disclosure Schedule, as of the date of this Agreement, of all of the following Contracts as amended to date which are currently in effect (collectively, “Material Contracts”):
(i) all Contracts that require annual payments or expenses incurred by, or annual payments or income to, the Company Group of $200,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practices);
(ii) all sales, advertising, agency, sales promotion, market research, marketing or similar Contracts;
(iii) each Contract with any current employee none of the Company Group or any of its Subsidiaries is a party to or bound by any: (A) which has continuing obligations for payment Contract required to be filed by the Company with the SEC pursuant to Item 601(b)(10) of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligationRegulation S-K under the Securities Act; (B) providing for severance or post-termination payments or benefits Contract with respect to such employee in excess of $60,000 (other than COBRA obligations partnerships, joint ventures or similar requirements under applicable local Law)arrangements; or (C) providing for a payment or benefit upon the consummation Contract containing covenants of the Company or any of its Subsidiaries purporting to limit in any material respect any line of business, any type of produce or service, and channel of distribution, or field of commercial endeavor or geographical area in which or with regard to which the Company or its Subsidiaries may operate or granting material exclusive rights to the counterparty thereto (including any agreement to which the Company or any of its Subsidiaries is subject that grants to any party most-favored-nation or similar rights); (D) Contract that, individually or in the aggregate with other Contracts, would or would reasonably be likely to prevent, materially delay or materially impede the Company’s ability to consummate the Merger or the other transactions contemplated by this Agreement or that would accelerate payment obligations, performance deadlines, or modify or accelerate any Ancillary other material obligation due to the Merger or other transactions contemplated by this Agreement; (E) Collective Bargaining Agreement or as a result of a change of control of the Company;
similar agreement; (ivF) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement Contract pursuant to which the Company or any Subsidiary is a party;
(v) all Contracts relating to of its Subsidiaries has any acquisitions or dispositions of assets of value Indebtedness in an amount in excess of $100,000 by 10 million outstanding (other than intercompany indebtedness); (G) Contract licensing or otherwise specifically concerning Intellectual Property (except for non-exclusive, commercially available, off-the-shelf software programs for which the Company Group and its Subsidiaries, taken as a whole, pay an annual fee of less than $5 million) that is material to the business of the Company and its Subsidiaries, taken as a whole; (H) Contract that accounted for aggregate revenue to the Company or any of its Subsidiaries of (1) more than $15 million during the Company’s 2009 fiscal year or (2) more than $10 million during the first nine months of the Company’s 2010 fiscal year; (I) Contract (or series of related Contracts) entered into after the Applicable Date that involves the acquisition from another person or disposition to another Person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration under such Contract (or series of related Contracts) in excess of $7.5 million (other than acquisitions or dispositions of inventory in the ordinary course of business consistent business); (J) Contract (or series of related Contracts) with past practices and any agency or department of the United States federal government or other than Contracts in which Governmental Entity, or other Government Contract, for the applicable acquisition or disposition or transaction has been consummated and there are no material obligations purchase of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which goods and/or services from the Company is obligated or any of its Subsidiaries which would reasonably be expected to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete result in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining payments to the Company Group to which or any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder its Subsidiaries in excess of $200,000 per year;
5 million; (xiK) all Contracts creating or otherwise relating Contract that relates to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of business, and (iv) enforceable by and against the Company Group and, to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of the date of this Agreement, any other party to a Material Contract, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.acquisition,
Appears in 1 contract
Contracts. (a) Schedule 4.14(a) sets forth a true, complete and accurate list, as SECTION 3.19 of the date Company Disclosure Schedule contains a true and complete list of this Agreement, of all each of the following Contracts as amended contracts, agreements or other arrangements to date which the Company is a party or by which any of its Assets and Properties are currently in effect bound (collectivelyand, “Material Contracts”to the extent oral, accurately describes the terms of such contracts, agreements and arrangements):
(i) all Contracts that require annual payments collective bargaining or expenses incurred by, or annual payments or income to, the Company Group of $200,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practices)similar labor agreements;
(ii) all salescontracts for the employment of any officer, advertisingemployee or other person or entity on a full time, agencypart time, sales promotion, market research, marketing consulting or similar Contractsother basis;
(iii) each Contract with all loan agreements, indentures, debentures, notes or letters of credit relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any current employee material asset or material group of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control assets of the Company;
(iv) all Contracts creating a joint ventureeach written warranty, strategic allianceguaranty, limited liability company or partnership arrangement other similar undertaking with respect to which contractual performance extended by the Company or any Subsidiary is a partyCompany;
(v) all Contracts relating to any acquisitions leases or dispositions of assets of value in excess of $100,000 by agreements under which the Company Group (is lessee or lessor of, or holds, or operates, any property, real or personal, owned by any other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing)party;
(vi) all IP Contractscommitments, separately identifying all such IP Contracts under contracts, sales contracts, purchase orders, mortgage agreements or groups of related agreements with the same party or any group or affiliated parties which require or may in the Company is obligated to pay royalties thereunder and all such IP Contracts under which future require payment of any consideration in excess of $5,000 by the Company is entitled to receive royalties thereunderCompany;
(vii) all Contracts limiting the freedom license agreements, distribution agreements or any other agreements involving any of the Company Group to compete in Company's Intellectual Property, including agreements with current and former employees, consultants or contractors regarding the appropriation or the non-disclosure of any line of business or industry, with any Person or in any geographic areaIntellectual Property;
(viii) all Contracts providing for guaranteeseach joint venture partnership and other Contract (however named) involving a sharing of profits, losses, costs or where such Contract was entered into for liabilities by the primary purpose of providing indemnification, Company with any other than Standard ContractsPerson);
(ix) all Contracts with any Contract for payments to or pertaining to by any Person by the Company Group to which any Affiliate of the Company Group is a partybased on sales, purchases or profits, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employeedirect payments for goods;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) each power of attorney that is currently effective and which involve payments to the lessor thereunder in excess of $200,000 per yearoutstanding;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (each Contract entered into other than intercompany Indebtedness) in the aggregate Ordinary Course of Business that are valued at $250,000 contains or greaterprovides for an express undertaking by the Company to be responsible for consequential damages;
(xii) all Contracts relating to the voting or control each Contract for capital expenditures in excess of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group)$10,000;
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty subscription or other agreements related to the Company Group in excess equity ownership of $200,000 per the terms of such contractCompany;
(xiv) other than all contracts or commitments that in any way restrict the Equity Incentive Plan and Contracts entered into Company from carrying on its business anywhere in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; andworld;
(xv) all collective bargaining other contracts and agreements that (A) involve the payment or other agreement with potential payment in excess of $10,000, pursuant to the terms of any such contract or agreement, by the Company and (B) cannot be terminated within 30 days after giving notice of termination without resulting in any cost or penalty to the Company;
(xvi) all contracts or commitments that in any way grant a labor unionthird party a right of first refusal for the purchase of the Company or any of its Assets or Properties; and
(xvii) each amendment, labor organization supplement, and modification (whether oral or works councilwritten) in respect to any of the foregoing.
(b) A correct and complete copy of each Contract disclosed in the Company Disclosure Schedule has been previously provided to Parent. Each Material Contract contract, agreement or other arrangement disclosed in the Company Disclosure Schedule is (i) in full force and effect and constitutes a legal, valid and binding agreement, enforceable in accordance with its terms, of the Company, and to the Knowledge of the Company, the other parties thereto; and the Company has performed all of its required obligations under, and is not in violation or breach of or default under, any such contract, agreement or arrangement. To the Knowledge of the Company, the other parties to any such contract, agreement or arrangement are not in violation or Breach of or in default under any such contract, agreement or arrangement. To the Knowledge of the Company, none of the present or former employees, officers, directors or shareholders of the Company is a party to any oral or written contract or agreement prohibiting any of them from freely competing with other parties or engaging in the Company's business as now operated. To the Knowledge of the Company, no event has occurred or circumstance exists that (iiwith or without notice or the lapse of time) may contravene, conflict with, or result in full force and effecta violation or Breach of, or give the Company or any other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Contract to which the Company is a party. The Company has not given to or received from any other Person any notice or other communication (iiiwhether oral or written) is on arm’s length terms and was regarding any actual, alleged, possible, or potential violation or breach of, or default under any Contract. There are no renegotiations of, attempts to renegotiate or outstanding rights to renegotiate any material amounts paid or payable to the Company under any current or complete Contract with any Person and, to the Knowledge of the Company, no such Person has made written demand for such renegotiation. The Contracts relating to the sale of services of the Company have been entered into in the ordinary course Ordinary Course of business, Business and (iv) enforceable by and against have been entered into without the Company Group and, to the Company’s Knowledge, each counterparty that is party thereto, subject, commission of any act alone or in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of the date of this Agreement, concert with any other party to a Material ContractPerson, is or any consideration having been paid or promised, that would be in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms violation of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect theretoLegal Requirement.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Crdentia Corp)
Contracts. (a) Schedule 4.14(a) sets forth a true, complete and accurate list, as of the date of this Agreement, of all of the following Contracts as amended to date which are currently in effect (collectively, “Material Contracts”):
The Company is not bound by (i) all Contracts that require annual payments any Contract which contains restrictions with respect to payment of dividends or expenses incurred by, or annual payments or income to, any other distribution in respect of its capital stock; (ii) any Contract requiring the Company Group to make future capital contributions to any entity; (iii) other than as set forth in the SEC Reports, any Contract relating to any indebtedness or Liability of the Company in excess of $200,000 or more 100.00; (iv) other than standard purchase and sale orders entered into as set forth in the SEC Reports, any loan or advance by the Company to any Related Party; (v) other than as set forth in the SEC Report, any management, service, consulting or any other similar type of Contract requiring payment of fees in excess of $25,000 per annum; (vi) any material warranty, guaranty or similar undertaking with respect to contractual performance extended by the Company other than in the ordinary course of business consistent with past practices);
(ii) all sales, advertising, agency, sales promotion, market research, marketing or similar Contracts;
(iii) each Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligationbusiness; (Bviii) providing for severance or post-termination payments or benefits to such employee other than as set forth in the SEC Reports, any Contract involving payment in excess of $60,000 100,000 per annum that cannot be terminated by the Company that is a party to such Contract without material liability upon less than ninety (90) days’ notice; (x) any Contract that governs any joint venture, partnership or other than COBRA obligations cooperative arrangement or similar requirements under applicable local Law)any other relationship involving a sharing of profits; (xi) any Contract that would result in the merger with or into or consolidation into another Person; (Cxii) providing any Contract for the sale of any of the assets of the Company with a payment sale price in excess of $100,000; (xiii) any material Contract that requires a consent to or benefit upon otherwise contains a provision relating to a “change in control”, or any Contract that would prohibit or delay the consummation of the Transactions contemplated by this Agreement or the Transaction Documents to which the Company is a Party or that would trigger, give rise to, accelerate or augment any liabilities or terminate or modify any rights of the Company as a result of the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result hereby and thereby (each of a change of control of the Company;
(ivi) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the Company or any Subsidiary is a party;
(v) all Contracts relating to any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Planabove, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council“Material Contract”).
(b) Each Other than Material Contracts which have terminated or expired in accordance with their terms, each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course agreement of business, and (iv) enforceable by and against the Company Group and, to the Knowledge of the Company’s Knowledge, each counterparty that is party of the other parties thereto, subjectenforceable against the Company in accordance with its terms, in the case of this clause (iv), subject to the Enforceability Exceptions. Neither the Company Group noreffects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws relating to the Company’s Knowledgeor affecting creditors’ rights generally, as of the date of this Agreement, any other party to a Material Contract, is in material breach or default and general equitable principles (whether with considered in a proceeding in equity or without the passage of time or the giving of notice or both) under the terms of any such Material Contractat Law). The Company Group has is not assignedin breach of, delegated or otherwise transferred any of its rights or obligations under default under, any Material Contract to which it is a party, except for such breaches or granted any power of attorney with respect theretodefaults that would not have a Material Adverse Effect on the Company.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Sources: Securities Purchase Agreement (Collective Audience, Inc.)
Contracts. (a) Schedule 4.14(a) sets forth a true, complete and accurate list, Section 4.12 of the Company Disclosure Letter lists each of the following Contracts entered into by the Company of any Company Subsidiary as of the date of this AgreementAgreement that (such Contracts, of all of the following Contracts as amended to date which are currently in effect (collectively, “Company Material Contracts”):
(i) all Contracts that require annual payments or expenses incurred by, or annual payments or income to, is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Company Group of $200,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practicesSEC);
(ii) all salesrelates to any joint venture, advertisingpartnership, agencylimited liability or other similar agreements or arrangements relating to the formation, sales promotioncreation, market researchoperation, marketing management or similar Contractscontrol of any joint venture or partnership that is material to the business of the Company and the Company Subsidiaries, taken as a whole, or in which the Company owns any voting or economic interest;
(iii) each Contract with any current employee of other than the Company Group (A) which has continuing obligations for payment of Existing Credit Agreements, is an annual compensation of at least $200,000indenture, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penaltycredit agreement, severance loan agreement, security agreement, guarantee, note, mortgage or other obligation; (B) Contract providing for severance or post-termination payments securing indebtedness for borrowed money, trade payables financing arrangements, deferred payment or benefits to such employee other Indebtedness (in each case, whether incurred, assumed, guaranteed or secured by any asset) in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company100,000;
(iv) all Contracts creating prohibits the payment of dividends or distributions in respect of any Equity Interest of the Company or any of the Company Subsidiaries, prohibits the pledging of any Equity Interest of any Company Subsidiary or prohibits the issuance of guarantees by any Company Subsidiary, other than the Existing Credit Agreements;
(v) is a joint venturematerial settlement, strategic alliance, limited liability company conciliation or partnership arrangement similar agreement (x) with any Governmental Authority or (y) which would require the Company or any Company Subsidiary to pay consideration of more than $150,000 after the date of this Agreement;
(vi) (A) contains a standstill or similar agreement pursuant to which the Company or any Company Subsidiary is has agreed not to acquire assets or securities of a partyThird Party, or (B) which contains any “non-solicitation”, “no hire” or similar provision which restrict the Company or any Company Subsidiary in soliciting, hiring, engaging, retaining or employing such Third Party’s current or former employees in a manner or to an extent that would interfere in any material respect with the ordinary course operations of the business of the Company or the Company Subsidiaries;
(vvii) all Contracts relating relates to any acquisitions or dispositions of assets of value in excess of $100,000 acquisition by the Company Group or any of the Company Subsidiaries of Equity Interests or any material assets (other than acquisitions or dispositions of inventory or equipment in the ordinary course of business consistent with past practices and business) pursuant to which the Company or any of the Company Subsidiaries has continuing indemnification (other than Contracts indemnification obligations with respect to directors and officers), “earn-out” or other contingent payment or guarantee obligations, in which the applicable acquisition or disposition or transaction has been consummated and there each case, that are no material obligations reasonably likely to result in payments in excess of any party thereto ongoing)$150,000;
(viviii) all IP Contracts, separately identifying all such IP Contracts under which contains any covenant that (A) materially limits the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom ability of the Company Group or any Company Subsidiary (or after the Acceptance Time or Effective Time, Parent, the Surviving Corporation, or their respective Subsidiaries) to compete engage in any line of business or industry, to compete with any Person or in operate at any geographic area;
(viii) all Contracts providing for guaranteeslocation, or where such Contract was entered into for that expressly requires the primary purpose Company and/or any Company Subsidiary to purchase an amount of providing indemnificationgoods or services from a particular Person in an amount in excess of $250,000 annually, other than Standard Contractsor $500,000 in the aggregate, or (B) could require the disposition of any material assets or material line of business of the Company or any Company Subsidiary;
(ix) all Contracts with other than employment agreements or pertaining to the Company Group to which any Affiliate indemnification agreements listed in Section 4.12(a)(ix) of the Company Group Disclosure Letter, involves any directors, executive officers (as such term is a party, defined in the Exchange Act) or 5% stockholders of the Company or any of their affiliates (other than the Company or any Contracts relating to such Affiliate’s status as a Company Securityholder Subsidiary) or employeeimmediate family members;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments relates to the lessor thereunder employment of any individual on a full-time or part-time, consulting, or other basis providing for an annual base salary in excess of $200,000 per year150,000 (each, a “Senior Employee”);
(xi) all Contracts creating contains a license of Intellectual Property (except for licenses of commercially available software granted by or otherwise relating to outstanding Indebtedness (other than intercompany Indebtednessthe Company or any Company Subsidiary) in that is material to the aggregate that are valued at $250,000 or greaterconduct of the business of the Company and the Company Subsidiaries, taken as a whole;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by its terms requires aggregate payments by the Company Group with no or any of Company Subsidiaries of more than sixty (60) days’ notice if $500,000 over the effect term of such cancellation would result in monetary Contract, except for (A) any such Contract that may be canceled, without any material penalty or other material liability to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary AgreementCompany Subsidiaries, upon notice of 90 days or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreementless, (iiB) in full force and effect, (iii) is on arm’s length terms and was entered into any purchase orders for merchandise issued in the ordinary course of business, (C) any Leases, or (D) any Contracts listed on Section 4.12(a)(xii) of the Company Disclosure Letter; or
(xiii) grants to any Person any right of first offer or right of first refusal to purchase, lease, sublease, use, possess or occupy all or a substantial part of the material assets of the Company or any of the Company Subsidiaries.
(b) Except as set forth in Section 4.12(b) of the Company Disclosure Letter and except as would not, individually or in the aggregate, result in a Company Material Adverse Effect, (ivi) each Company Material Contract is legally valid and binding on the Company and each Company Subsidiary party thereto, in full force and effect and enforceable by and against the Company Group or a Company Subsidiary in accordance with its terms, subject to the Enforceability Exception, (ii) to the knowledge of the Company, each Company Material Contract is a legally valid and binding obligation of the counterparty thereto, in full force and effect and enforceable against such counterparty in accordance with its terms, subject to the Enforceability Exception, (iii) neither the Company nor any Company Subsidiary, and, to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case knowledge of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of the date of this Agreementno counterparty, is in breach or violation of, or default under, any other party to a Company Material Contract, is in material breach (iv) none of the Company or any Company Subsidiary has received notice of any violation or default under (whether or any condition which with or without the passage of time or the giving of notice would cause such a violation of or bothdefault under) under any Company Material Contract that has not been cured and (v) the terms Company has not received any notice from any counterparty to any Company Material Contract that such counterparty intends to terminate, or not renew, any Company Material Contract and the Company otherwise has no knowledge of any such counterparty’s intent to terminate, or not renew, any Company Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing As of the transactions contemplated by date of this Agreement shall not cause Agreement, true and correct copies of all Company Material Contracts (as amended or result in an event modified) are either publicly filed with the SEC or the Company has made available to Parent prior to the date hereof copies of default under any instruments or Contracts establishing or evidencing any Indebtednesssuch Company Material Contracts.
Appears in 1 contract
Sources: Merger Agreement (Dialogic Inc.)
Contracts. (a) Except as set forth on Schedule 4.14(a3.19(a) sets forth a trueand the Transaction Documents, complete and accurate list, as of the date of this Agreement, of all of the following Contracts as amended to date which are currently in effect (collectively, “Material Contracts”):neither any Group Company nor any Subsidiary is bound by:
(i) all Contracts that require annual payments or expenses incurred by, or annual payments or income to, the Company Group of $200,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practices);
(ii) all sales, advertising, agency, sales promotion, market research, marketing or similar Contracts;
(iii) each any Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess (x) a commitment of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing employment for a payment specified or benefit upon unspecified term or otherwise relating to employment or the consummation termination of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result employment of a change of control senior executive officers of the Company;
; and (ivy) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the any obligation of any Group Company or any Subsidiary is a party;
(v) all Contracts relating to any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnificationmake payments, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of business, and to any Employee exceeding RMB2,000,000 or any group of Employees exceeding RMB5,000,000 in the aggregate;
(ii) any material Contract (other than the Transaction Documents) with any Person containing any provision or covenant prohibiting or limiting the ability of the Company or any Subsidiary to engage in any business activity or compete with any Person;
(iii) any material partnership, joint venture, shareholders or other similar Contracts with any Person, except that the Company may enter into such Contract with other investors that purchase addition Series A preferred Shares;
(iv) enforceable any Contract relating to Indebtedness of any Group Company or any Subsidiary or to any preferred shares issued by and against any Group Company or any Subsidiary, other than the incurrence of accounts payable in the ordinary course of business of the Group Companies, except that the Company may enter into such Contract with other investors that purchase addition Series A preferred Shares;
(v) any material Contract relating to (x) the future disposition or acquisition of any Assets and Properties and (y) any merger or other business combination;
(vi) any material Contract between or among any Group andCompany or any Subsidiary, on the one hand, and the Founder, on the other hand;
(vii) any Contract (other than the Transaction Documents) that in any material respect, (x) limits, or contains restrictions on, the ability of any Group Company or any Subsidiary to declare or pay dividends on, to the Company’s Knowledgemake any other distribution in respect of or to issue or purchase, each counterparty that is party thereto, subject, in the case of this clause (iv)redeem or otherwise acquire its Equity Securities, to the Enforceability Exceptions. Neither the Company Group norincur Indebtedness, to incur or suffer to exist any Encumbrance, to purchase or sell any Assets and Properties, to change the Company’s Knowledge, as lines of the date of this Agreement, business in which it participates or engages or to engage in any other party to a Material Contract, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.business combination or
Appears in 1 contract
Sources: Second Share Subscription Agreement (Charm Communications Inc.)
Contracts. (a) Schedule 4.14(a) sets Except as set forth a true, complete and accurate list, as of the date of this Agreement, of all of the following Contracts as amended to date which are currently in effect (collectively, “Material Contracts”):
(i) all Contracts that require annual payments or expenses incurred by, or annual payments or income to, the Company Group of $200,000 or more (other than standard purchase Disclosure Schedule and sale orders except for agreements relating to Loans and deposits entered into in the ordinary course of business consistent business, the Company is not a party to or bound by any contract, arrangement, commitment or understanding (whether written or oral) (i) with past practices);
respect to the employment of any directors, officers, employees or consultants, (ii) all saleswhich, advertising, agency, sales promotion, market research, marketing or similar Contracts;
(iii) each Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement Agreement, will (either alone or upon the occurrence of any additional acts or events) result in (x) any payment or benefits (whether of severance pay or otherwise) becoming due, or any Ancillary Agreement increase in the amount of or as a result acceleration or vesting of a change any rights to any payment or benefits, from Cathay, any of control its Subsidiaries, or the Company, to any director, officer, employee or consultant thereof (other than payment of the Company;
Merger Consideration or the Offer Consideration with respect to their shares of Company Common Stock) or (y) the invalidity, unenforceability or discontinuation of any such contract, arrangement, commitment or understanding, whether in whole or in part, (iii) which is not terminable without cause on sixty (60) days or less notice or involves the payment of more than $25,000 per annum, (iv) all Contracts creating a joint venturewhich materially restricts the conduct of any line of business by the Company, strategic alliance, limited liability company or partnership arrangement (v) provides recourse to which the Company or any former Subsidiary is a party;
(v) all Contracts relating to any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to sale of any loan or other extension of credit (excluding customary short-term rights of recourse for fraudulent application statements in connection with the Equity Incentive Plansale of conforming residential mortgage loans). Each contract, all Contracts under which any arrangement, commitment or understanding of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by type described in this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; andSection 4.15
(xva) all collective bargaining (excluding agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid relating to Loans and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was deposits entered into in the ordinary course of business), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a "Company Contract." The Company has previously delivered or made available to Cathay true and correct and complete copies of each Company Contract.
(i) Each Company Contract is a valid and binding obligation of the Company and is in full force and effect, (ii) the Company has performed all obligations required to be performed by it to date under each Company Contract, (iii) no event or condition exists which constitutes, or after notice or lapse of time or both would constitute, a default on the part of the Company under any Company Contract, and (iv) enforceable by and against the no other party to such Company Group andContract is, to the knowledge of the Company’s Knowledge, each counterparty that is party thereto, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of the date of this Agreement, default in any other party to a Material Contract, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect theretothereunder.
(c) The Except as set forth in the Company Group is in compliance in all material respects Disclosure Schedule, the Company has not entered into a confidentiality agreement or other similar agreement with all covenants, including all financial covenants, in all notes, indentures, bonds and any third party (other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing than Buyer) pursuant to which the Company has contemplated the disclosure of confidential information of the transactions contemplated by this Company.
(d) The Agreement shall and Plan of Merger among UCBH Holdings, Inc., United Commercial Bank, and the Company, dated as of October 13, 2005 and each of the shareholder voting agreements between UCBH Holdings, Inc., United Commercial Bank, and each executive officer and director and certain shareholders of the Company have been terminated in accordance with their respective terms and are of no further force and effect. Except for the Cathay Options, to the Company's knowledge, there are not cause any (i) shareholder agreements, voting trusts, proxies or result in an event other agreements or understandings relating to the voting of default under any instruments shares of the Company or Contracts establishing (ii) agreements or evidencing understandings relating to the sale or transfer (including agreements imposing transfer restrictions) of any Indebtednessshares of the Company.
Appears in 1 contract
Contracts. (a) Schedule 4.14(aSection 2.19(a) sets forth a true, complete and accurate list, as of the date Disclosure Schedule (with paragraph references corresponding to those set forth below) contains a true and complete list of this Agreement, of all each of the following Contracts as amended or other arrangements (true and complete copies or, if none, reasonably complete and accurate written descriptions of which, together with all amendments and supplements thereto and all waivers of any terms thereof, have been delivered to date Purchaser prior to the execution of this Agreement), to which are currently in effect (collectively, “Material Contracts”):the Company or any Subsidiary is a party or by which any of their respective Assets and Properties is bound:
(iA) all Contracts that require annual payments (excluding Benefit Plans) providing for a commitment of employment or expenses incurred by, consultation services for a specified or annual payments unspecified term or income tootherwise relating to employment or the termination of employment, the name, position and rate of compensation of each Person party to such a Contract and the expiration date of each such Contract; and (B) any written or unwritten representations, commitments, promises, communications or courses of conduct (excluding Benefit Plans and any such Contracts referred to in clause (A)) involving an obligation of the Company Group of $200,000 or more (any Subsidiary to make payments in any year, other than standard purchase with respect to salary or incentive compensation payments in the ordinary course of business, to any employee exceeding $2,000 or any group of employees exceeding $15,000 in the aggregate;
(ii) all Contracts with any Person containing any provision or covenant prohibiting or limiting the ability of the Company or any Subsidiary to engage in any business activity or compete with any Person or prohibiting or limiting the ability of any Person to compete with the Company or any Subsidiary;
(iii) all material partnership, joint venture, shareholders' or other similar Contracts with any Person;
(iv) all Contracts relating to Indebtedness of the Company or any Subsidiary;
(v) all material Contracts with distributors, dealers, manufacturer's representatives, sales agencies or franchisees;
(vi) all Contracts relating to (A) the future disposition or acquisition of any Assets and sale orders entered into Properties, other than dispositions or acquisitions in the ordinary course of business consistent with past practices);
(ii) all sales, advertising, agency, sales promotion, market research, marketing or similar Contracts;
(iii) each Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000practice, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance any merger or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the Company or any Subsidiary is a party;
(v) all Contracts relating to any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereundercombination;
(vii) all Contracts limiting the freedom of between or among the Company Group to compete in or any line Subsidiary, on the one hand, and Seller, any officer, director or Affiliate (other than the Company or any Subsidiary) of business or industrySeller, with any Person or in any geographic areaon the other hand;
(viii) all Contracts providing for guarantees, collective bargaining or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard similar labor Contracts;
(ix) all Contracts with that (A) limit or pertaining to contain restrictions on the Company Group to which any Affiliate ability of the Company Group is a partyor any Subsidiary to declare or pay dividends on, to make any other than distribution in respect of or to issue or purchase, redeem or otherwise acquire its capital stock, to incur Indebtedness, to incur or suffer to exist any Contracts relating Lien, to such Affiliate’s status as a purchase or sell any Assets and Properties, to change the lines of business in which it participates or engages or to engage in any Business Combination or (B) require the Company Securityholder or employee;any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition; and
(x) all other Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany IndebtednessBenefit Plans, leases listed in Section 2.16(a) of the Disclosure Schedule and insurance policies listed in Section 2.21 of the aggregate Disclosure Schedule) that are valued at $250,000 (A) involve the payment or greater;
(xii) all Contracts relating potential payment, pursuant to the voting terms of any such Contract, by or control of the equity interests of to the Company Group or the election any Subsidiary of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than $25,000 annually and (B) cannot be terminated within sixty (60) days’ days after giving notice if the effect of such cancellation would result termination without resulting in monetary any material cost or penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works councilSubsidiary.
(b) Each Material Contract required to be disclosed in Section 2.19(a) of the Disclosure Schedule is (i) in full force and effect and constitutes a legal, valid and binding agreement, (ii) enforceable in full force and effect, (iii) is on arm’s length accordance with its terms and was entered into in the ordinary course of business, and (iv) enforceable by and against the Company Group and, to the Company’s KnowledgeKnowledge of Sellers, of each counterparty that is party thereto; and except as disclosed in Section 2.19(b) of the Disclosure Schedule neither the Company, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group any Subsidiary nor, to the Company’s Knowledge, as Knowledge of the date of this AgreementSellers, any other party to a Material Contractsuch Contract is, is or has received notice that it is, in material violation or breach of or default under any such Contract (whether or with notice or without the passage lapse of time or the giving both, would be in violation or breach of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing such Contract) in any Indebtednessmaterial respect.
Appears in 1 contract
Contracts. (a) Schedule 4.14(a) sets forth a true, complete and accurate list, as Section 3.8 of the date of this Agreement, Disclosure Schedule contains a list of all of the following Contracts as amended to date which are currently in effect (collectively, “Material Contracts”):
(i) all Contracts that require annual payments or expenses incurred by, or annual payments or income to, the Company Group of $200,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practices);
(ii) all sales, advertising, agency, sales promotion, market research, marketing or similar Contracts;
(iii) each Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the Company or any Subsidiary is a party;
(v) all Contracts relating to party and which fall within any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group following categories (other than the organizational or constitutive documents of Leases and the Company Group);
Management Agreements not described in clause (xiii) all below, which shall be deemed not to be Material Contracts): (i) “material contracts” within the meaning of Item 601(b)(10) of Regulation S-K; (ii) Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty material to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Planits Subsidiaries, all Contracts under which any of the benefitstaken as a whole, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was not entered into in the ordinary course of business; (iii) pending Contracts for the disposition of any assets or line of business of the Surviving Corporation or its Subsidiaries having a fair market value in excess of $1,000,000 in the aggregate;(iv) Contracts that are reasonably likely to result in payments to or from the Surviving Corporation or its Subsidiaries in excess of $1,000,000 that grant “most favored nation” status that, following the Merger, would apply to the Surviving Corporation and its Subsidiaries;(v) joint venture, partnership and similar agreements; (ivvi) enforceable by and against Contracts containing covenants purporting to limit the freedom of the Company Group and, to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of the date of this Agreement, any other party to a Material Contract, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights Affiliates to compete in any line of business in any geographic area or obligations under to hire or solicit any Material Contract individual or granted group of individuals; (vii) Contracts that after the Effective Time would have the effect of limiting the freedom of the Surviving Corporation or any power of attorney with respect thereto.
its Affiliates to compete in any line of business in any geographic area or to hire any individual or group of individuals; (cviii) The Contracts that contain minimum purchase conditions or requirements in excess of $1,000,000 or other terms that materially restrict or limit the purchasing relationships of the Company Group is or any Subsidiary; (ix) Contracts relating to any outstanding commitment for capital expenditures in compliance in all material respects with all covenantsexcess of $1,000,000; (x) indentures, including all financial covenantsmortgages, in all notes, indenturesbonds, bonds debentures, instruments, credit agreements and loan agreements and all other instruments or Contracts establishing documents and contracts (including guarantees) in respect of or evidencing any Indebtedness. The consummation and closing Debt in excess of $1,000,000, letters of credit or other Contracts or instruments of the transactions contemplated Company or any Subsidiary or commitments for the borrowing or the lending of amounts or availability of other Debt in excess of $1,000,000 by this Agreement shall not cause the Company or result any Subsidiary or providing for the creation of any Encumbrance upon any of the assets of the Company or any Subsidiary; (xi) collective bargaining agreements; (xii) Contracts with or for the benefit of any Affiliate of the Company (other than Subsidiaries or contracts relating to employee benefits in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.connection with employment by the Company) and (xiii) the Material Leases and Management
Appears in 1 contract
Contracts. (a) Schedule 4.14(aPart 2.10(a) sets forth a true, complete and accurate list, as of the date of this Agreement, of all of the following Contracts Company Disclosure Schedule identifies each currently valid Company Contract as amended to date which are currently in effect (collectively, “Material Contracts”):follows:
(i) all Contracts that require annual payments or expenses incurred by, or annual payments or income to, each Contract relating to the performance of services to the Company Group by any consultant or independent contractor and the terms of $200,000 or more (other than any standard purchase and sale orders entered into in form of employment Contract relating to the ordinary course employment of business consistent with past practices)any Employee;
(ii) all salesrelating to the acquisition, advertisingtransfer, agencyuse, sales promotiondevelopment, market research, marketing sharing or similar Contractslicense of any technology or any Intellectual Property Rights;
(iii) each Contract with any current employee of the Company Group that (A) which has continuing obligations for payment of an annual compensation of at least $200,000limits, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penaltypurports to limit, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control ability of the Company;
(iv) all Contracts creating a joint venture, strategic allianceor, limited liability company or partnership arrangement to which immediately following the Company Closing Date, the Parent or any Subsidiary is a party;
(v) all Contracts relating to any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group Parent’s Affiliates to compete in any line of business or industry, with any Person or in any geographic areaarea or during any period of time, (B) would by their terms purport to be binding upon or impose any obligation upon the Parent or any of its Affiliates (other than the Company or its Subsidiaries), (C) contain any so called “most favored nation” provisions or any similar provision requiring the Company (or after the Control Share Purchase, the Parent or any of its Affiliates) to offer a third party terms or concessions (including levels of service or content offerings) at least as favorable as offered to one or more other parties or (D) provide for “exclusivity,” preferred treatment or any similar requirement or under which the Company is restricted, or which after the Closing would restrict the Parent or any of its Affiliates, with respect to distribution, licensing, marketing, co-marketing or development;
(iv) creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) relating to the acquisition, issuance or transfer of any securities;
(vi) relating to the creation of any Encumbrance with respect to any asset of the Company;
(vii) involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) all Contracts providing for guaranteescreating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contractsliabilities;
(ix) all Contracts with or pertaining relating to the Company Group to which purchase or sale of any Affiliate product or other asset by or to, or the performance of the Company Group is a partyany services by or for, other than any Contracts relating to such Affiliate’s status Related Party (as a Company Securityholder or employeedefined in Section 2.17);
(x) all Contracts constituting or relating to property a Government Contract or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per yearGovernment Bid;
(xi) all Contracts creating providing for “earn outs,” “performance guarantees” or otherwise relating contingent payments by or to outstanding Indebtedness (other the Company involving more than intercompany Indebtedness) in $20,000 over the aggregate that are valued at $250,000 term of any such contract or greaterarrangement;
(xii) all Contracts relating to the voting or control of the equity interests of providing for any future performance by the Company Group in consideration of amounts previously paid to, or accrued by, the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group)Company;
(xiii) containing (whether in the contract or arrangement itself or by operation of law) any provisions (A) containing a “change of control” or similar provision with respect to the Company or (B) prohibiting or imposing any restrictions on the assignment of all Contracts not cancellable or any portion of the assets thereof by the Company Group with no more than sixty to any other Person (60) days’ notice if the effect of such cancellation would result in monetary penalty without regard to the Company Group in excess of $200,000 per the terms of such contractany exception permitting assignments to Subsidiaries or Affiliates);
(xiv) other than relating to web site linking or framing, and to co-branding;
(xv) guaranteeing or warranting that the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any services of the benefits, compensation Company are fit for any particular purpose or payments committing to any performance levels;
(or the vesting thereofxvi) will having a term of more than 60 days and that may not be increased or accelerated terminated by the consummation Company (without penalty) within 60 days after the delivery of a termination notice by the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary AgreementCompany; and
(xvxvii) all collective bargaining agreements constituting a commitment of any Person to purchase products (including products in development) of the Company involving an amount of $20,000 or other agreement with a labor union, labor organization or works councilmore.
(b) To the Knowledge of the Company, Part 2.10(b) of the Company Disclosure Schedule provides an accurate description of the terms of each Company Contract that is not in written form and that involves the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000. Each Material Company Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of business, and (iv) enforceable by and against the Company Group andis, to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case Knowledge of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of the date of this Agreement, any other party to a Material Contract, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.
(c) The Company Group is in compliance in all material respects with all covenantsapplicable Legal Requirements, including all financial covenantsis enforceable by the Company in accordance with its terms, and immediately after the Closing Date will continue to be legal, valid, binding and enforceable on identical terms. Except as disclosed with specificity in all notesthe Company Disclosure Schedules, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The the consummation and closing of the transactions contemplated hereby shall not (either alone or upon the occurrence of additional acts or events) result in any payment or payments becoming due from the Company, the Parent or any of its Affiliates to any Person or give any Person the right to terminate or alter the provisions of any Company Contract.
(c) Except as set forth in Part 2.10(c) of the Company Disclosure Schedule, the Company has not violated or breached, or committed any default under, any Company Contract involving consideration in excess of $10,000, and, to the Knowledge of the Company, no other Person has materially violated or breached, or committed any material default under, any such Company Contract.
(d) To the Knowledge of the Company and except as disclosed in Part 2.10(d) of the Company Disclosure Schedules, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (i) result in a violation or breach of any of the provisions of any Company Contract, (ii) give any Person the right to declare a default or exercise any remedy under any Company Contract, (iii) give any Person the right to accelerate the maturity or performance of any Company Contract, or (iv) give any Person the right to cancel, terminate or modify any Company Contract in a manner that could have a material adverse affect on the Company.
(e) The Company has not received any written notice regarding any actual or possible violation or breach of, or default under, any Company Contract.
(f) Except in the ordinary course of business, the Company has not waived any of its material rights under any material Company Contract.
(g) Except in the ordinary course of business, no Person is renegotiating any amount paid or payable to the Company under any Company Contract or any other material term or provision of any Company Contract.
(h) The Company Contracts collectively constitute the material Contracts entered into by the Company in connection with their businesses as they are currently being conducted.
(i) Part 2.10(i) of the Company Disclosure Schedule identifies and provides a brief description of each material proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by the Company which relate solely to the businesses currently conducted by the Company.
(j) Part 2.10(j) of the Company Disclosure Schedule provides an accurate and complete list of all Consents required under any Company Contract to consummate the Control Share Purchase and the other transactions contemplated by this Agreement shall not cause or result Agreement.
(k) Each Key Employee has executed a standard form of employment Contract described in an event of default under any instruments or Contracts establishing or evidencing any IndebtednessSection 2.10(a)(i).
Appears in 1 contract
Sources: Stock Purchase Agreement (Optical Communication Products Inc)
Contracts. (a) Except as (x) otherwise set forth in Section 3.20(c) of the Company Disclosure Schedule 4.14(aor (y) sets included as an exhibit in any of the Filed Company SEC Documents, set forth in Section 3.13(a) of the Company Disclosure Schedule is a truelist of each (i) Contract that would be required to be filed as an exhibit to a Registration Statement on Form S-1 under the Securities Act or an Annual Report on Form 10-K under the Exchange Act if such registration statement or report was filed by the Company with the SEC on the date hereof, (ii) Contract that purports to limit, curtail or restrict the ability of the Company or any of its existing or future Affiliates to compete in any geographic area or line of business, (iii) partnership or joint venture agreement, (iv) Contract for the acquisition, sale or lease of material properties or assets (by merger, purchase or sale of stock or assets or otherwise) entered into since January 1, 2002, (v) Contract with any (A) Governmental Authority or (B) director, officer or other Affiliate of the Company, (vi) loan or credit agreement, mortgage, indenture, note or other Contract or instrument evidencing indebtedness for borrowed money by the Company or any of its Subsidiaries or any Contract or instrument pursuant to which indebtedness for borrowed money may be incurred or is guaranteed by the Company or any of its Subsidiaries, in each case, in excess of $5,000,000, (vii) voting agreement or registration rights agreement, (viii) collective bargaining agreement, (ix) “standstill” or similar agreement, (x) any other Contract to the extent material to the business or financial condition of the Company and its Subsidiaries, taken as a whole, and (xi) commitment or agreement to enter into any of the foregoing (the Contracts and other documents required to be listed in Section 3.13(a) of the Company Disclosure Schedule, together with any and all other Contracts of such type entered into in accordance with Section 5.2(a), each a “Material Contract“). The Company has heretofore made available to Parent correct and complete and accurate list, copies of each Material Contract in existence as of the date of this Agreementhereof, of together with any and all amendments and supplements thereto and material “side letters” and similar documentation relating thereto.
(b) Each of the following Material Contracts as amended to date which are currently is valid, binding and in full force and effect (collectively, “Material Contracts”):
(i) all Contracts that require annual payments or expenses incurred by, or annual payments or income to, and is enforceable in accordance with its terms by the Company Group of $200,000 or more (other than standard purchase and sale orders entered into its Subsidiaries party thereto, subject to the Bankruptcy and Equity Exception. Except as separately identified in the ordinary course of business consistent with past practices);
(iiSection 3.13(b) all sales, advertising, agency, sales promotion, market research, marketing or similar Contracts;
(iii) each Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000Disclosure Schedule, and which is not terminable for any reason no approval, consent or no reason upon reasonable notice without payment waiver of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee Person is needed in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon order that any Material Contract continue in full force and effect following the consummation of the transactions contemplated by this Agreement Transactions. Neither the Company nor any of its Subsidiaries is in default under any Material Contract or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement other Contract to which the Company or any Subsidiary of its Subsidiaries is a party;
party (v) all Contracts relating to collectively, the “Company Contracts“), nor does any acquisitions condition exist that, with notice or dispositions lapse of assets of value in excess of $100,000 time or both, would constitute a default thereunder by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of business, and (iv) enforceable by and against the Company Group and, to the Company’s Knowledge, each counterparty that is its Subsidiaries party thereto, subjectexcept for such defaults as, individually or in the case aggregate, have not had and could not reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of the date of this Agreement, any no other party to a Material Contract, any Company Contract is in material breach default thereunder, nor does any condition exist that with notice or default (whether with or without the passage lapse of time or the giving of notice or both) under the terms of both would constitute a default by any such other party thereunder, except for such defaults as, individually or in the aggregate, have not had and could not reasonably be expected to have a Company Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect theretoAdverse Effect.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Contracts. (a) Disclosure Schedule 4.14(aSection 3.05(a) sets forth a true, complete and accurate list, as of the date of this Agreement, of all of the following Contracts as amended to date (other than Contracts which are currently in effect Excluded Assets) to which the Sellers or ▇▇▇▇▇▇▇▇ are a party related to the Business as of the date hereof (collectively, each a “Material ContractsAssumed Contract”):
(i) all Contracts any Contract for the sale of broadcast time for advertising or other purposes for cash that require annual payments or expenses incurred by, or annual payments or income to, the Company Group of $200,000 or more (other than standard purchase and sale orders entered into was not made in the ordinary course of business consistent with past practices);
(ii) all sales, advertising, agency, sales promotion, market research, marketing or similar Contractsany Contract relating to Program Rights;
(iii) each any Contract with any current employee involving the purchase or sale of real property that has not closed as of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Companydate hereof;
(iv) all Contracts creating a joint ventureany Contract entered into after January 1, strategic alliance2010 relating to the acquisition or disposition of any material portion of the Business (whether by merger, limited liability company sale of stock, sale of assets or partnership arrangement to which the Company or any Subsidiary is a partyotherwise);
(v) all Contracts any Contract involving construction, architecture, engineering or other agreements relating to any acquisitions or dispositions of assets of value uncompleted construction projects, in each case that involve payments in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing)100,000;
(vi) all IP Contractsany mortgage, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunderpledge or security agreement, deed of trust or other instrument granting a Lien (other than Permitted Liens) upon any Purchased Asset, other than those that will be paid off at Closing;
(vii) all Contracts limiting any Contract involving a partnership, joint venture or similar agreement with another party;
(viii) any Contract involving compensation to any employee, independent contractor, or consultant (provided, however, that for purposes of this Section 3.05(a)(viii), the freedom term Contract shall not include at-will Contracts);
(ix) any Contract involving any labor agreement or collective bargaining agreement of the Company Group Sellers;
(x) any Contract that contains a covenant restricting the ability of the Sellers to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) area in which the Company Group holds a leasehold interest Stations operate (including provided, however, that for purposes of this Section 3.05(a)(x), the Lease) and which involve payments term Contract shall, with respect to the lessor thereunder in excess of $200,000 per yearReal Property, only mean Real Property Leases);
(xi) all Contracts creating any Contract that is a local marketing agreement, joint sales agreement or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greatersimilar agreement;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group any Contract with a Governmental Authority (other than the organizational ordinary course Contracts with Governmental Authorities as a customer) which imposes any material obligation or constitutive documents of the Company Group)restriction on Seller;
(xiii) all Contracts not cancellable by any Contract pursuant to which any Indebtedness for borrowed money of the Company Group with no more than sixty Sellers is outstanding or may be incurred or pursuant to which the Sellers have guaranteed any Indebtedness for borrowed money of any other Person (60) days’ notice if excluding trade payables arising in the effect ordinary course of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contractbusiness);
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject any Contract relating to the Equity Incentive Plan, all Contracts under which any non-broadcast use of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary AgreementStations’ digital bit stream; and
(xv) all collective bargaining agreements other Contracts (including all programming contracts) that involve the cash payment or other agreement with a labor unionpotential cash payment, labor organization pursuant to the terms of any such Contract, by or works councilto the Sellers of more than $100,000 per year that cannot be terminated within one hundred and eighty (180) days after giving notice of termination without resulting in any material cost or penalty to the Sellers.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into in None of the ordinary course of business, and (iv) enforceable by and against the Company Group Sellers and, to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as Knowledge of the date of this AgreementSellers, any no other party to a Material Contractparty, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect theretoAssumed Contract.
(c) The Company Group Each Material Assumed Contract is in compliance in all material respects with all covenantsfull force and effect and constitutes a legal, including all financial covenants, in all notes, indentures, bonds valid and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing binding obligation of the transactions contemplated Sellers and, to the Knowledge of the Sellers, of each other party thereto (except to the extent that the enforceability thereof may be limited by this Agreement shall not cause applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or result other Laws from time to time in an event effect relating to creditors’ rights and remedies generally and general principles of default under any instruments or Contracts establishing or evidencing any Indebtednessequity).
Appears in 1 contract
Contracts. (a) Set forth in Section 3.14(a) of the Company Disclosure Schedule 4.14(a) sets forth is a true, complete and accurate list, as of the date of this Agreement, of all (i) each Contract that would be required to be filed as an exhibit to a Registration Statement on Form S-1 under the Securities Act or an Annual Report on Form 10-K under the Exchange Act if such registration statement or report was filed by the Company with the SEC on the date of this Agreement, and (ii) each of the following Contracts as amended to date which are currently in effect (collectively, “Material Contracts”):
(i) all Contracts that require annual payments or expenses incurred by, or annual payments or income to, the Company Group or any of its Subsidiaries is a party or otherwise bound: (A) any Contract that contains a non-competition provision or that otherwise purports to limit, curtail or restrict the ability of the Company or any of its Subsidiaries (or, after the Effective Time, Parent or any of its Affiliates) to compete in any geographic area or line of business or restrict the Persons to whom the Company or any of its Subsidiaries may sell products or deliver services, (B) any Contract that grants any third party “most favored nation” status or the exclusive right to deal with the Company or any of its Subsidiaries that involves total consideration in excess of $200,000 2,500,000 annually, (C) any partnership or more joint venture agreement, (other than standard purchase and sale orders entered into D) any Contract not in the ordinary course of business consistent with past practices);
practice for the acquisition, sale or lease of properties or assets (iiby merger, purchase or sale of stock or assets or otherwise) all salesentered into since July 31, advertising2007, agency, sales promotion, market research, marketing or similar Contracts;
(iiiE) each any Contract with any current employee of the Company Group (Ax) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee Governmental Authority that involves total consideration in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;1,000,000 annually or
(ivy) all Contracts creating a joint venture, strategic alliance, limited liability company director or partnership arrangement to which officer of the Company or any Subsidiary is of its Subsidiaries or any Affiliate of the Company, (F) any loan or credit agreement, mortgage, indenture, note or other Contract or instrument evidencing Indebtedness of the Company or any of its Subsidiaries, in each case of greater than $100,000 individually or $500,000 in the aggregate for all such Contracts, (G) any financial derivatives master agreement or confirmation, or futures account opening agreements and/or brokerage statements, evidencing financial hedging or similar trading activities, (H) any voting agreement or registration rights agreement, (I) any mortgage, pledge, security agreement, deed of trust or other Contract granting a party;
(v) all Contracts relating to Lien on any acquisitions property or dispositions of assets of value the Company or any of its Subsidiaries that involves total consideration in excess of $100,000 by the Company Group 25,000, (J) any (1) customer or client Contract that involves total consideration in excess of $2,500,000 annually (other than acquisitions purchase orders issued (or dispositions received) for the purchase or sale of inventory goods in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Leasepractice) and which involve payments to the lessor thereunder (2) supply Contract that involves total consideration in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness 500,000 annually (other than intercompany Indebtednesspurchase orders issued (or received) for the purchase or sale of goods in the aggregate ordinary course of business consistent with past practice), (K) any collective bargaining agreement, (L) any “standstill” or similar agreement, (M) any Contract that are valued at $250,000 restricts or greater;
otherwise limits the payment of dividends or other distributions on equity securities, (xiiN) all Contracts relating any to the voting extent material to the business or control of the equity interests financial condition of the Company Group and its Subsidiaries, taken as a whole, (1) any indemnification Contract, (2) any sales representative or the election distribution Contract or (3) any Contract granting a right of directors of first refusal or first negotiation, (O) any Contract pursuant to which the Company Group or any of its Subsidiaries is granted a license to use any Company Intellectual Property from third parties (other than the organizational or constitutive documents of the Company Group);
(xiii) all excluding Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty pertaining to commercially available Software that is licensed to the Company Group or the relevant Subsidiary for a total license fee or royalty of less than $100,000), (P) any Contract pursuant to which the Company leases, licenses or otherwise obtains the right to use any real property and such Contract involves annual base rental payments in excess of $200,000 per 250,000 and (Q) any commitment or agreement to enter into any of the terms foregoing (the Contracts and other documents required to be listed on Section 3.14(a) of the Company Disclosure Schedule, together with any and all other Contracts of such contract;
(xiv) other than the Equity Incentive Plan and Contracts type entered into in connection accordance with the Equity Incentive Plan and subject Section 5.2, each a “Company Material Contract” ). The Company has prior to the Equity Incentive Plan, all Contracts under which any date of this Agreement made available to Parent correct and complete copies of each Company Material Contract in existence as of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation date of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or together with any Ancillary Agreement; and
(xv) and all collective bargaining agreements or other agreement with a labor union, labor organization or works councilamendments and supplements thereto.
(b) Each Except as set forth in Section 3.14(b)(1) of the Company Disclosure Schedule and with such exceptions as, individually or in the aggregate, have not had and are not reasonably likely to have a Company Material Contract is Adverse Effect: (i) each Contract to which the Company or any of its Subsidiaries is a valid party (collectively, the “Company Contracts” ) is valid, binding and binding agreement, (ii) in full force and effecteffect and is enforceable in accordance with its terms by the Company and its Subsidiaries party thereto, subject to the Bankruptcy and Equity Exception; (ii) neither the Company nor any of its Subsidiaries is in default under any Company Contract, nor does any condition exist that, with notice or lapse of time or both, would constitute a default thereunder by the Company and its Subsidiaries party thereto; (iii) to the Knowledge of the Company, no other party to any Company Contract is on arm’s length terms and was entered into in the ordinary course default thereunder, nor does any condition exist that with notice or lapse of business, time or both would constitute a default by any such other party thereunder; and (iv) enforceable by and against neither the Company Group andnor any of its Subsidiaries has received any notice of termination or cancellation under any Company Contract, received any notice of breach or default under any Company Contract which breach or default has not been cured, or granted to any third party any rights, adverse or otherwise, that would constitute a breach of any Company Contract. Except as set forth in Section 3.14(b)(2) of the Company’s KnowledgeCompany Disclosure Schedule, each counterparty (i) no approval, consent or waiver of any Person is needed in order that any Company Material Contract continue in full force and effect following the consummation of the Transactions and (ii) no approval, consent or waiver of any Person is party theretoneeded in order that any Contract, subjectother than any Company Material Contract, continue in full force and effect following the consummation of the Transactions except, in the case of this clause (ivii), for such approvals, consents or waivers the failure to obtain, individually or in the Enforceability Exceptions. Neither the aggregate, have not and are not reasonable likely to have a Company Group nor, to the Company’s Knowledge, as of the date of this Agreement, any other party to a Material Contract, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect theretoAdverse Effect.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Sources: Merger Agreement (Dynamex Inc)
Contracts. (a) Schedule 4.14(a) sets Except as set forth a true, complete and accurate list, as in Section 4.14 of the date Disclosure Schedule (or in Sections 4.10 [Title], 4.13 [Intellectual Property], 4.15 [Employees], or 4.20 [Material Suppliers] of the Disclosure Schedule), and except for contracts or agreements that would have been required to be identified on any of the foregoing sections of the Disclosure Schedule but for the fact that they were excepted from disclosure pursuant to the terms of the applicable Section of this Agreement, of all of neither the following Contracts as amended to date which are currently in effect (collectivelyCompany nor any Subsidiary is a party to, “Material Contracts”):or subject to:
(i) all Contracts that require annual payments any contract or expenses incurred byseries of related contracts, or annual payments or income toother than Purchase Orders (as hereinafter defined), which obligates the Company Group to make annual expenditures or involves receipts by the Company or the applicable Subsidiary of more than $200,000 or more 50,000;
(ii) any Material Personal Property Lease;
(iii) any lease of real property;
(iv) any license agreement other than standard purchase and sale orders entered into software licenses described in Section 4.11 hereof;
(v) any contract or agreement not made in the ordinary course of business and consistent with past practices)practice, involving annual payments exceeding $5,000 in any case;
(iivi) all salesany note, advertisingbond, agencyindenture, sales promotioncredit facility, market researchmortgage, marketing security agreement or similar Contractsother instrument or document which creates, provides for, secures or otherwise governs any indebtedness for money borrowed or a security interest or mortgage in the assets of the Company or any Subsidiary;
(iiivii) each Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000warranty, and which is not terminable for any reason indemnity or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated guaranty issued by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(ivviii) all Contracts creating a joint venture, strategic alliance, limited liability company any contract granting to any person the right to use any material item of property or partnership arrangement to which property right of the Company or any Subsidiary;
(ix) any contract restricting the right of the Company or any Subsidiary is a party;
(v) all Contracts relating to any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete engage in any line of business activity or industry, compete with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employeebusiness;
(x) all Contracts relating any option, agreement, offer or right to purchase or to acquire any interest in any real property or assets (whether real or personal, tangible or intangible) other than such rights contained in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;Real Estate Leases); or
(xi) all Contracts creating any outstanding offer which if accepted would constitute a contract or otherwise relating legally binding commitment to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 enter into any contract or greater;
(xii) all Contracts relating to the voting or control arrangement of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result nature described in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is foregoing subsections (i) a valid and binding agreement, through (ii) in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of business, and (iv) enforceable by and against the Company Group and, to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case of this clause (ivx), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of the date of this Agreement, any other party to a Material Contract, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Contracts. Subject to the exceptions provided for in the next sentence, the contracts and agreements listed in Section 2.16 of the Disclosure Schedule constitute each contract, instrument, lease, deed or agreement which is material to the business or operations of the Company (athe "CONTRACTS"). Complete copies (or, if oral, written summaries, except as set forth in Section 2.16 of the Disclosure Schedule) Schedule 4.14(aof each Contract have been made available to the Buyer, including all of the following Contracts: (i) sets forth a trueany indenture, complete and accurate listnote, mortgage, installment obligation, or other instrument for or relating to any borrowing of money; (ii) any guaranty of any obligation; (iii) any agreement, contract, commitment or arrangement containing any covenant limiting the ability of the Company to engage in any line of business or to compete with any business or person; (iv) as of the date of hereof, any agreement, contract, commitment or arrangement relating to capital expenditures with respect to the Company and involving future payments which exceed Cdn $100,000 in any 12-month period; (v) other than this Agreement, any agreement, contract, commitment or arrangement relating to the acquisition or disposition of all assets or any capital stock of the following Contracts as amended to date which are currently in effect (collectively, “Material Contracts”):
(i) all Contracts that require annual payments or expenses incurred by, or annual payments or income to, the Company Group of $200,000 or more (any business enterprise other than standard purchase and sale orders those relating to the acquisition or disposition of assets entered into in the ordinary course of business consistent with past practices);
practice; (iivi) all salesany real property or personal property lease; (vii) as of the date hereof, advertisingany contract, agencycommitment, sales promotionagreement or arrangement which requires future payments in excess of Cdn $100,000 in any 12-month period, market researchto the extent such contract, marketing commitment, agreement or similar Contracts;
arrangement is not terminable within 30 days without payment of premium or penalty; and (iiiviii) each Contract any contract, commitment, agreement or arrangement with any current employee director, shareholder or affiliate of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, except this Agreement and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee the agreements contemplated hereunder. Except as set forth in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation Section 2.16 of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all Contracts creating a joint ventureDisclosure Schedule, strategic alliance, limited liability company or partnership arrangement to which the Company or any Subsidiary is a party;
(v) all Contracts relating to any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material each Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) and is on arm’s length terms a legal, valid and was entered into in the ordinary course binding obligation of business, and (iv) enforceable by and against the Company Group and, to the Company’s Knowledgebest knowledge of the Sellers and the Senior Managers, each counterparty that is party of the other parties thereto, subjectenforceable in accordance with its terms, except that (x) enforcement may be limited by bankruptcy, insolvency, arrangement or other similar laws now or hereafter in effect relating to creditors' rights generally, (y) the case remedy of this clause (iv), specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as discretion of the date court before which any proceeding therefor may be brought and (z) the Currency Act (Canada) precludes a court in Canada from giving judgment in any currency other than Canadian currency. Except as set forth in Section 2.16 of this Agreementthe Disclosure Schedule, any other party to a Material Contract, is in material breach no condition exists or default event has occurred which (whether with or without the passage notice or lapse of time or both, or the giving of notice happening or both) under the terms occurrence of any such Material Contract. The other event) would constitute a default by the Company Group has not assignedor, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing to the best knowledge of the transactions contemplated by this Agreement shall not cause Sellers and the Senior Managers as of the date hereof, any other party thereto under, or result in an event a right in termination of, any Contract, by any other party thereto. Except as set forth in Section 2.16 of default under the Disclosure Schedule, to the best knowledge of the Sellers and the Senior Managers as of the date hereof, no party to any instruments Contract intends (x) to terminate such Contract or Contracts establishing materially amend the terms thereof, (y) to refuse to renew such Contract upon expiration thereof or evidencing any Indebtedness(z) to renew such Contract upon expiration thereof on terms and conditions which are materially more onerous to the Company than those pertaining to such existing Contract.
Appears in 1 contract
Sources: Share Purchase Agreement (Russell-Stanley Holdings Inc)
Contracts. (a) Seller Disclosure Schedule 4.14(a) sets forth 4.15 contains a true, true and complete and accurate list, as of the date of this Agreement, of all listing of the following Contracts contracts and other agreements with respect to the ownership and operation of the Transferred Assets (each such contract or agreement being referred to herein as amended to date which are currently in effect (collectively, a “Material ContractsContract”):
(i) all Contracts that require annual payments Any natural gas gathering, transportation or expenses incurred by, or annual payments or income to, the Company Group of $200,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practices);storage agreement;
(ii) all sales, advertising, agency, sales promotion, market research, marketing Any agreement (or similar Contracts;group of related agreements with the same Person) for the lease of personal property to or from any Person providing for lease payments in excess of $125,000 per annum;
(iii) each Contract Any agreement (or group of related agreements with any current employee the same Person) for the purchase or sale of raw materials, commodities, supplies, products or other personal property, or for the Company Group (A) which has continuing obligations for payment furnishing or receipt of an annual compensation services, the performance of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits reasonably expected to such employee involve annual consideration in excess of $60,000 125,000;
(iv) Any agreement concerning a partnership, joint venture, investment or other arrangement (A) involving a sharing of profits or losses relating to all or any portion of the Transferred Assets, or (B) requiring EQT Gathering, AVC or ▇▇▇▇▇ to invest funds in or make loans to, or purchase any securities of, another Person, venture or other business enterprise relating to the Transferred Assets;
(v) Any agreement (or group of related agreements with the same Person) with respect to the creation, incurrence, assumption, or guaranteeing of any indebtedness for borrowed money, or any capitalized lease obligation;
(vi) Any agreement that prohibits or otherwise materially limits the ability of an owner of the Transferred Assets to compete in any material respect in any line of business or with any Person or in any material geographic area during any period of time after the Closing;
(vii) Any agreement by and among EQT Gathering, AVC, ▇▇▇▇▇ or any Affiliate (other than COBRA obligations EQM and its Subsidiaries) to the extent applicable to the Transferred Assets and which individually involves annual revenues or similar requirements payments in excess of $125,000;
(viii) Any collective bargaining agreement;
(ix) Any lease under applicable local Law); which EQT Gathering, AVC or ▇▇▇▇▇ is the lessor or lessee of real property that provides for an annual base rental to or from EQT Gathering, AVC or ▇▇▇▇▇ of more than $125,000;
(Cx) providing for Any easement agreement, right-of-way agreement, license or permit involving an annual payment of more than $125,000;
(xi) Any agreement that governs the use or development of Intellectual Property Assets (other than off-the-shelf software license agreements);
(xii) Any agreement under which the consequences of a payment default or benefit upon termination would reasonably be expected to have a Seller Material Adverse Effect; or
(xiii) Any agreement (or group of related agreements with the same Person) not enumerated in this Section 4.15, the performance of which by any party thereto involves consideration in excess of $125,000.
(b) EQT Gathering and EQT Gathering Holdings have made available to EQM, EQM Gathering Opco, Equitrans Investments and/or Equitrans LP a correct and complete copy of each Material Contract.
(i) Each Material Contract, and each of the other Transferred Contracts, AVC Pipeline Contracts and ▇▇▇▇▇ Storage Contracts, is legal, valid and binding on and enforceable against EQT Gathering, AVC or ▇▇▇▇▇, as applicable, and to the Knowledge of EQT Gathering and EQT Gathering Holdings, against the other parties thereto, and is in full force and effect; (ii) none of EQT Gathering, AVC or ▇▇▇▇▇ is in breach or default, and no event has occurred which with notice or lapse of time would constitute a breach or default by EQT Gathering, AVC or ▇▇▇▇▇ or permit termination, modification or acceleration under any Material Contract or under any of the other Transferred Contracts, AVC Pipeline Contracts or ▇▇▇▇▇ Storage Contracts; (iii) to the Knowledge of EQT Gathering and EQT Gathering Holdings, no other party to any Transferred Contract, AVC Pipeline Contract or ▇▇▇▇▇ Storage Contract is in breach or default, and no event has occurred which with notice or lapse of time would constitute a breach or default by such other party, or permit termination, modification or acceleration under any Transferred Contract, AVC Pipeline Contract or ▇▇▇▇▇ Storage Contract other than in accordance with its terms, nor has any other party repudiated any provision of any Transferred Contract, AVC Pipeline Contract or ▇▇▇▇▇ Storage Contract; and (iv) following the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control Agreement, each Material Contract and each of the Company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the Company or any Subsidiary is a party;
(v) all Contracts relating to any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Transferred Contracts, separately identifying all such IP AVC Pipeline Contracts under which the Company is obligated and ▇▇▇▇▇ Storage Contracts will continue to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industrybe legal, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) and in full force and effecteffect on identical terms.
(d) Except as set forth on Seller Disclosure Schedule 4.15, (iii) is on arm’s length terms and was entered into in the ordinary course none of businessEQT Gathering, and (iv) enforceable by and against the Company Group and, AVC or ▇▇▇▇▇ has given to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of the date of this Agreement, or received from any other party to a Material ContractPerson any notice or other communication (whether oral or written) regarding any actual, is in material alleged, possible or potential violation or breach of, or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assignedunder, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect theretothat continues to be unresolved.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Contracts. (a) Schedule 4.14(a) sets forth a true, complete and accurate list, as As of the date of this Agreement, of all of neither the following Contracts as amended Company nor any Company Subsidiary is a party to date which are currently in effect (collectively, “Material Contracts”):or bound by:
(i) all Contracts that require annual payments or expenses incurred by, or annual payments or income to, the Company Group of $200,000 or more any Contract relating to Indebtedness (other than standard purchase and sale orders entered into Contracts among direct or indirect wholly-owned Company Subsidiaries) in the ordinary course excess of business consistent with past practices)$15,000,000;
(ii) all salesany joint venture, advertisingpartnership, agencylimited liability company or other similar Contract relating to the formation, sales promotioncreation, market researchoperation, marketing management, sharing of profit or similar Contractslosses or control of any partnership, strategic alliance or joint venture, in each case, material to the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract any Contract, including any option Contract, relating to the acquisition or disposition, with material obligations remaining to be performed or material liabilities continuing after the date of this Agreement, of any current employee of assets, business or real property that is material to the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000and the Company Subsidiaries, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or taken as a result whole (whether by merger, sale of a change stock, sale of control of the Companyassets or otherwise);
(iv) all Contracts creating any Contract under which any Company Subsidiary licenses to any Person any material Owned Intellectual Property or any Person licenses to any Company Subsidiary any material Intellectual Property;
(v) any Contract providing for the purchase or sale of goods or services involving payments in excess of $15,000,000 in the fiscal year ended December 31, 2017 or reasonably expected to involve payments in excess of $15,000,000 for the fiscal year ending December 31, 2018, in each case, that is not terminable by the Company or the Company Subsidiaries without penalty with 90 days or less notice;
(vi) any material Contract with or material subcontract relating to a joint venture, strategic alliance, limited liability company Governmental Authority;
(vii) any Contract (including any exclusivity Contract) that limits or partnership arrangement restricts or purports to limit or restrict either the type of business in which the Company or any Company Subsidiary (or, after the Effective Time, the Surviving Corporation or its Affiliates) may engage or the manner or locations in which any of them may so engage in any business, including any covenant not to compete (geographically or otherwise), “most favored nations” or similar rights, in each case that is a party;
(v) all Contracts relating material to any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industrySubsidiaries, with any Person or in any geographic area;taken as a whole; or
(viii) all Contracts providing for guarantees, any other Contract that would be required to be filed as an exhibit to any Company SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S—K under the Securities Act) that has not been filed as an exhibit to or where such Contract was entered into for incorporated by reference in the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining SEC Documents filed prior to the Company Group to which any Affiliate date of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Except for any UBBP Contracts, the Contracts listed or required to be listed in Section 4.18(a) of the Company Disclosure Letter or filed as an exhibit to any SEC Document are referred to herein as the “Company Contracts.” Except for matters which, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Contract is Adverse Effect, (i) each Company Contract is a valid and binding agreementContract of the Company or a Company Subsidiary, (ii) as the case may be, and to the Knowledge of the Company, each other party thereto, and is in full force and effect, (iii) is on arm’s length terms and was entered into except, in each case, as enforcement may be subject to the ordinary course of business, General Enforceability Exceptions and (ivii) enforceable by and against none of the Company, any Company Group andSubsidiary or, to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case Knowledge of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of the date of this Agreement, any other party to a Material Contract, thereto is in material breach or default (whether with or without the passage notice or lapse of time or the giving of notice time, or both) in default or breach under the terms of any such Material Company Contract. The Company Group has not assigned, delegated or otherwise transferred any made available to Parent accurate and complete copies of its rights or obligations under any Material each such Company Contract or granted any power of attorney with respect thereto.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds modifications and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation amendments thereto and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtednesswaivers thereunder).
Appears in 1 contract
Sources: Merger Agreement (Gebr. Knauf Verwaltungsgesellschaft Kg)
Contracts. (a) Schedule 4.14(a) 3.08 sets forth all contracts, agreements, and other commitments, whether oral or written (each, a true, complete and accurate list, “Contract”) to which any Seller Party is a party or by which any Seller Party is bound as of the date of this Agreement, of all hereof that is used and held for use primarily in or that arises primarily out of the following Contracts as amended to date which are currently in effect (collectively, “Material Contracts”):
(i) all Contracts that require annual payments operation or expenses incurred by, or annual payments or income to, conduct of the Company Group of $200,000 or more Business (other than standard purchase and sale orders any such contracts, agreement or other commitments entered into after the date of this Agreement in the ordinary course of business consistent and which will be disclosed to Purchaser prior to Closing) in the following categories:
(i) an employee collective bargaining agreement or other Contract with past practices)any labor union;
(ii) all sales, advertising, agency, sales promotion, market research, marketing a Contract containing any covenant limiting the freedom of any Seller Party in respect of the Business or similar Contractsthe operations of the Business to compete with any person in any geographic area if such Contract will be binding on Purchaser after Closing;
(iii) each Contract with any current employee of the Company Group a (A) which has continuing obligations Contract for payment the future purchase of an annual compensation of at least $200,000materials, supplies, equipment, raw materials, packaging or commodities (including purchase contracts and which is not terminable orders for any reason or no reason upon reasonable notice without payment of any penaltyinventory), severance or other obligation; (B) providing for severance management, service, commission, consulting, representative, agency, franchise, development, distribution or post-termination payments other similar Contract, or benefits (C) marketing or advertising Contract, in each case which has an aggregate future liability to such employee any person in excess of $60,000 (other 25,000 and is not terminable by a Seller Party by notice of not more than COBRA obligations or similar requirements under applicable local Law); or (C) providing 30 days for a payment or benefit upon the consummation cost of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Companyless than $25,000;
(iv) all Contracts creating a joint ventureContract under which either Seller Party has borrowed any money from, strategic allianceor issued any note, limited liability company bond, debenture or partnership arrangement to which the Company other evidence of indebtedness to, any person or any Subsidiary other note, bond, debenture or other evidence of indebtedness of such Seller Party (other than in favor of such Seller Party) in any such case which, individually, is a partyin excess of $25,000;
(v) all Contracts relating to a Contract (including so-called take-or-pay or keep well agreements) under which (A) any acquisitions person has directly or dispositions indirectly guaranteed indebtedness, liabilities or obligations of assets of value in excess of $100,000 by the Company Group such Seller Party or (other than acquisitions B) a Seller Party has directly or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition indirectly guaranteed indebtedness, liabilities or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
person (vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into each case other than endorsements for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into collection in the ordinary course of business), in any such case which, individually, is in excess of $25,000;
(vi) a lease, sublease or similar Contract with any person under which a Seller Party is a lessor or sublessor of, or makes available for use to any person (A) any Leased Real Property or (B) any portion of any premises otherwise occupied by such Seller Party;
(vii) a lease or similar Contract with any person under which a Seller Party is lessee of, or holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by any person which lease or similar Contract has an aggregate future liability in excess of $25,000 and is not terminable by such Seller Party by notice of not more than 30 days for a cost of less than $25,000;
(viii) a Contract relating to the disposition or acquisition of the assets of, or any interest in, any business enterprise which primarily relates to the Business other than in the ordinary course of business;
(ix) a partnership, joint venture, teaming or other similar Contract primarily relating to the Business;
(x) any other Contract that has an aggregate future liability to any person in excess of $25,000 and is not terminable by a Seller Party by notice of not more than 30 days for a cost of less than $25,000 (other than purchase orders and sales orders).
(b) Except as set forth on Schedule 3.08(b), all Transferred Contracts which are listed on Schedule 3.08(a) (the “Business Contracts”) are valid, binding and in full force and effect and are enforceable by the applicable Seller Party in accordance with their terms subject, as to enforcement, to applicable bankruptcy, insolvency, moratorium, reorganization or similar laws affecting creditors’ rights generally and to general equitable principles, except for such failures to be valid, binding, in full force and effect or enforceable that would not reasonably be expected to have a Business Material Adverse Effect. Unless otherwise specified on Schedule 3.08, each Seller Party has performed all material obligations required to be performed by it to date under the Business Contracts, and (iv) enforceable by the Seller Parties are not in breach or default of any material obligation thereunder, and against the Company Group and, to the Company’s Knowledgeknowledge of Seller, each counterparty that is no other party thereto, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledgeany Business Contract, as of the date of this Agreement, any other party to a Material Contracthereof, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has material obligation thereunder, and Seller does not assigned, delegated have knowledge of any fact or otherwise transferred circumstance which could reasonably be expected to constitute a breach or default or any of its rights or obligations under any Material Contract or granted any power of attorney with respect theretomaterial obligation thereunder.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Contracts. (a) Section 3.12(a) of the Company Disclosure Schedule 4.14(a) sets forth a true, complete and accurate list, lists the following Company Contracts in effect as of the date of this AgreementAgreement (other than any Company Benefit Plan and any purchase order, of all work order or quality agreement that, for each of the following Contracts as amended to date which are currently in effect foregoing, does not modify any material term or condition of, or contain any material term or condition that is not contemplated by or contained in, a Company Material Contract disclosed on Section 3.12(a) of the Company Disclosure Schedule) (collectivelyeach, a “Company Material ContractsContract”):
(i) all Contracts that require annual payments or expenses incurred by, or annual payments or income to, each material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Company Group of $200,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practices)Securities Act;
(ii) all saleseach Contract that is material to the business or operation of the Company and its Subsidiaries, advertisingtaken as a whole, agencycontaining (A) any provision limiting the freedom of the Company or any of its Subsidiaries to engage in any line of business or compete with any Person, sales promotionother than any employee, market researchcustomer, or consultant non-solicitation covenants entered into in the Ordinary Course of Business, (B) any “most-favored nations” pricing provisions or marketing or similar Contractsdistribution rights related to any products or territory, (C) any exclusivity provision or (D) any agreement to purchase a minimum quantity of goods or services, other than, in the cases of clauses (A) and (C) above, any confidentiality or non-use provisions in Contracts entered into in the Ordinary Course of Business or in connection with any potential acquisition by the Company or any of its Subsidiaries of material assets or any ownership interests in any entity (whether by merger, sale of stock, sale of assets or otherwise), which are not material to the business of or operations of the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that governs the formation, creation, governance, economics or control of any joint venture, legal partnership or other similar arrangement, other than with respect to any current employee of Contract solely between or among the Company Group and any of its Subsidiaries;
(Aiv) which has continuing obligations for payment each Contract relating to capital expenditures and requiring payments after the date of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee this Agreement in excess of $60,000 250,000 pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any entity (whether by merger, sale of stock, sale of assets or otherwise);
(vi) each Contract providing for the creation of any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments providing for the creation of material Indebtedness of the Company or any of its Subsidiaries or creating any material Liens, other than COBRA obligations Contracts creating Liens of the type, nature and scope contemplated by clauses (i)(B), (i)(C), (i)(D), (i)(E), (ii) or similar requirements under applicable local Law); (iii) of the definition of Permitted Liens or Contracts required to be disclosed on Section 3.12(a)(ix) of the Company Disclosure Schedule, with respect to any material assets of the Company or any of its Subsidiaries;
(vii) each Company Real Estate Lease;
(viii) each Contract with any Governmental Entity or any university, college, research institute or other educational or academic institution that provides for research and development activities involving the creation of any material Intellectual Property Rights;
(ix) each (A) Company Out-bound License, (B) Company In-bound License, (C) providing Contract pursuant to which any material research or development activities are conducted by the Company or any of its Subsidiaries for a third party or by a third party for the Company or any of its Subsidiaries or (D) settlement, co-existence or other similar Contract that grants a third party a license or right to use or restricts any Person from filing, registering, enforcing, disposing of or otherwise exploiting any Company Owned IP;
(x) each Contract that is material to the business or operations of the Company and its Subsidiaries, taken as a whole, under which the Company or any of its Subsidiaries has continuing milestone, royalty or similar contingent payment obligations, including upon the achievement of regulatory or commercial milestones or obligation to pay any royalty, dividend or similar payment based on the revenues or profits of the Company or any of its Subsidiaries, in each case, excluding indemnification and performance guarantee obligations provided for in the Ordinary Course of Business and any Contracts required to be disclosed on Section 3.12(a)(ix) of the Company Disclosure Schedule;
(xi) each Contract that is not terminable at will with no more than 60 days’ prior notice (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and which expressly provides for payment or benefit upon receipt by the consummation Company or any of its Subsidiaries after the transactions contemplated by date of this Agreement under any such Contract of more than $500,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate;
(xii) each collective bargaining agreement or other similar Contract with any Ancillary Agreement labor organization, union, group or as a result of a change of control association covering employees of the Company;
(ivxiii) all Contracts creating a joint ventureeach Contract (A) for the employment or engagement of any employee, strategic alliance, limited liability company consultant or partnership arrangement to which the Company independent contractor providing such Person with target annual compensation or any Subsidiary is a party;
(v) all Contracts relating to any acquisitions or dispositions of assets of value fees in excess of $100,000 by 350,000, (B) providing for the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations payment of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which cash or other compensation or benefits upon the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom consummation of the Company Group Merger, (C) restricting the Company’s ability to compete in terminate the employment or services of any line of business employee, consultant or industryindependent contractor thereof at any time for any lawful reason or for no reason without penalty, with any Person or in any geographic area;
(viiiD) all Contracts providing for guaranteesseverance or similar termination payments, retention or change in control payments, or where such Contract was entered into for the primary purpose acceleration of providing indemnification, other than Standard Contracts;
(ix) all Contracts with vesting or pertaining to the Company Group to which grant of any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder incentive equity or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contractsimilar compensation;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection each Contract with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; anda Company Material Customer;
(xv) all collective bargaining agreements or other agreement each Contract with a labor unionCompany Material Supplier; or
(xvi) each “single-source” supply Contract, labor organization pursuant to which material goods or works councilservices are supplied to the Company or any of its Subsidiaries from an exclusive source that cannot be replaced by one or more other sources on substantially similar terms and in a reasonably timely manner.
(b) Each The Company has made available to Parent accurate and complete copies of all Company Material Contracts, including all material amendments thereto, in each case in effect on the date hereof but excluding any business associate agreements or data processing addenda issued under or pursuant to a Company Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course Ordinary Course of businessBusiness to the extent accessible to Parent on the website of the counterparty to such business associate agreement or data processing addenda, and (iv) enforceable by and against as applicable, as of the date hereof. There are no Company Group andMaterial Contracts that are not in written form. None of the Company, any of its Subsidiaries or, to the Company’s Knowledge, each counterparty any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that is it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party theretoto cancel or terminate any such Company Material Contract, subject, in the case of this clause (iv), or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Enforceability ExceptionsCompany and its Subsidiaries, taken as a whole. Neither As to the Company Group norand its Subsidiaries, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Bankruptcy and Equity Exception. Between the date of the Company Balance Sheet and the date hereof, no counterparty to a Company Material Contract has notified the Company in writing (or, to the Company’s Knowledge, as of the date of this Agreement, any other party otherwise) that it intends to terminate or not renew a Company Material Contract, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Sources: Merger Agreement (SomaLogic, Inc.)
Contracts. (a) Schedule 4.14(a) sets forth a true, complete and accurate listExcept for this Agreement, as of the date of this Agreement, neither the Company nor any of all of its Subsidiaries is a party to or bound by any Contract (other than the following Contracts agreements filed or incorporated by reference as amended exhibits to date which are currently in effect (collectively, “Material Contracts”the Company SEC Documents):
(i) all Contracts that require annual payments or expenses incurred by, or annual payments or income to, is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Company Group of $200,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practicesSecurities Act);
(ii) all salesthat relates to any joint venture, advertisingpartnership, agencylimited liability or other similar agreements or arrangements relating to the formation, sales promotioncreation, market researchoperation, marketing management or similar Contracts;control of any joint venture or partnership that is material to the business of the Company and the Company Subsidiaries, taken as a whole; or
(iii) each Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee securing Indebtedness in an amount in excess of $60,000 25,000,000 outstanding (other than COBRA obligations or similar requirements under applicable local Lawintracompany Indebtedness); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all Contracts creating a joint venturethat involves the acquisition from another Person or disposition to another Person, strategic alliancedirectly or indirectly (by merger, limited liability company license or partnership arrangement to which the Company or any Subsidiary is a party;
(v) all Contracts relating to any acquisitions or dispositions otherwise), of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and practice) or capital stock or other than Contracts equity interests of another Person for aggregate consideration in which excess of $50,000,000 to the applicable acquisition extent either entered into since February 27, 2010 or disposition containing material representations, covenants, indemnities or transaction has been consummated and there other obligations (including “earnout” or other contingent obligations) that are no material obligations still in effect and, individually or in the aggregate, would reasonably be expected to result in payments by the Company or any of any party thereto ongoing)its Subsidiaries in excess of $20,000,000; or
(v) that is a collective bargaining agreement covering in excess of 50 employees;
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom Each Contract of the type described in this Section 3.13(a) is referred to herein as a “Company Group to compete in any line of business Material Contract.” “Indebtedness” means: (A) indebtedness for borrowed money or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose deferred purchase price of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets services (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) but excluding trade payables and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into receivables in the ordinary course of business), including indebtedness evidenced by a note, bond, debenture or similar instrument; (B) obligations to pay rent or other amounts under any lease of real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet under GAAP; (C) reimbursement obligations in respect of outstanding and drawn letters of credit, acceptances and similar obligations created for the account of such Person; (D) net cash payment obligations under interest rate cap agreements, interest rate swap agreements, foreign currency exchange agreements and other hedging agreements or arrangements; and (ivE) enforceable by and against the Company Group and, to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of the date of this Agreement, any other party to a Material Contract, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms guarantee of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any obligations described in clauses (A) through (D) of its rights or obligations under any Material Contract or granted any power of attorney with respect theretothis definition.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Contracts. (a) Schedule 4.14(aExcept as specifically contemplated by this Agreement and except as set forth on the "CONTRACTS SCHEDULE" attached hereto, neither Seller (only with respect to the Acquired Companies) sets forth a true, complete and accurate list, as nor any of the date of this Agreement, of all of the following Contracts as amended Acquired Companies is a party to date which are currently in effect (collectively, “Material Contracts”):or bound by any:
(i) all Contracts that require annual payments collective bargaining agreement or expenses incurred bycontact with any labor union or any bonus, pension, profit sharing, retirement or annual payments any other form of deferred compensation plan or income toany stock purchase, the Company Group of $200,000 stock option, hospitalization insurance or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practices)similar plan or practice, whether formal or informal;
(ii) all salescontract for the internal employment of any officer, advertising, agency, sales promotion, market research, marketing individual employee or similar Contractsother person on a full-time or part-time basis providing annual compensation in excess of $100,000;
(iii) each Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Companyor severance agreement or similar arrangement;
(iv) all Contracts creating agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a joint venture, strategic alliance, limited liability company Lien or partnership arrangement to which the Company or Encumbrance on any Subsidiary is a partyof its assets;
(v) all Contracts relating to contract under which any acquisitions of the Acquired Companies has advanced or dispositions of assets of value loaned any other Person amounts in excess of the aggregate exceeding $100,000 by the Company Group (50,000, other than acquisitions or dispositions of inventory trade credit extended in the ordinary course Ordinary Course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing)Business;
(vi) all IP Contracts, separately identifying all such IP Contracts under which agreement with respect to the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunderlending or investing of funds;
(vii) all Contracts limiting the freedom guaranty of the any obligation, other than endorsement made for collection and guarantees of obligation of an Acquired Company Group pursuant to compete in any line of business or industry, with any Person or in any geographic areaLease;
(viii) all Contracts providing for guaranteesmanagement, consulting, advertising, marketing, promotion, technical services, advisory or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with contract or pertaining other similar arrangement relating to the Company Group to which any Affiliate design, marketing, promotion, management or operation of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve Acquired Companies involving payments to the lessor thereunder in excess of $200,000 per year;
(ix) lease or agreement under which it is lessee of, or holds or operates, any personal property owned by any other Person calling for payment in excess of $100,000 annually;
(x) lease or agreement 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 calling for payments in excess of $100,000 per year;
(xi) all Contracts creating agreement or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) group of related agreements with the same Person for the purchase of products or services under which the annual expense of such products and services has a price in the aggregate that are valued at excess of $250,000 or greater200,000;
(xii) all Contracts contracts relating to (A) the voting future disposition or control acquisition of any assets or properties of the equity interests of the Company Group or the election of directors of the Company Group (Acquired Companies, other than dispositions or acquisitions in the organizational or constitutive documents Ordinary Course of the Company Group)Business, and (B) any business combination;
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty contracts that incur indebtedness or incur or suffer to the Company Group in excess of $200,000 per the terms of such contractexist any Lien;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject contracts arising solely out of an acquisitive or dispositive transaction (A) obligating an Acquired Company to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreementmake, or the amount provide for, indemnification or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement (B) to which indemnification is provided to an Acquired Company or Seller (only with respect to and directly involving any Ancillary AgreementAcquired Company); and
(xv) all collective bargaining agreements contracts with any Person containing any provision or other agreement covenant prohibiting or limiting the ability of an Acquired Company to engage in any business or compete with a labor union, labor organization any Person concerning any business or works councilprohibiting or limiting the ability of any Person to compete with the Business or an Acquired Company.
(b) Each Material Contract is The CONTRACTS SCHEDULE contains a complete and accurate list of the contracts or agreements with any customer of Seller which was responsible for revenue in excess of $250,000 in 2001 with respect to the Acquired Companies. Except as disclosed on the CONTRACTS SCHEDULE, since December 31, 2001, no such customer has (i) a valid and binding agreement, ceased purchases from the Acquired Companies or the Business or (ii) in full force and effect, materially reduced its purchases from the Acquired Companies or the Business (iii) is on arm’s length terms and was entered into other than as a result of fluctuations that are customary in the ordinary course Ordinary Course of business, and (iv) enforceable by and against Business). Except as disclosed on the Company Group andCONTRACTS SCHEDULE, to the Company’s KnowledgeKnowledge of Seller, no such customer is threatened with bankruptcy or insolvency.
(c) Except as disclosed on the CONTRACTS SCHEDULE: (i) no contract required to be disclosed on the CONTRACTS SCHEDULE and no other material contract or commitment has been materially breached or canceled by the Acquired Companies; (ii) each counterparty that is party thereto, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of the date Acquired Companies has performed all of this Agreement, any other party the material obligations required to a Material Contract, be performed by them in connection with the contracts required to be disclosed on the CONTRACTS SCHEDULE and no Acquired Company is in material breach or default (whether whereby such default is continuing and has not been cured) under or in breach of any such contracts, and no event has occurred which with or without the passage of time or of the giving of notice or both, would result in such a continuing material default or breach thereunder; (iii) under each material agreement including any contract required to be disclosed on the terms CONTRACTS SCHEDULE, is legal, valid, binding, enforceable and in full force and effect; and (iv) except as disclosed on the CONTRACTS SCHEDULE, none of any such Material Contract. The Company Group the Acquired Companies is, or has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenantsreceived notice that it is, in all notes, indentures, bonds and other instruments violation or Contracts establishing breach of or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments such contract (or Contracts establishing with notice or evidencing lapse of time or both, would be in violation or breach of or default under any Indebtednesssuch contract).
Appears in 1 contract
Contracts. (a) Schedule 4.14(a) sets forth Neither the Company nor any Company Subsidiary is a trueparty to or, complete and accurate list, as to the knowledge of the date of this AgreementCompany, of all of the following Contracts as amended to date which are currently in effect (collectively, “Material Contracts”):bound by any:
(i) all Contracts that require annual payments employment or expenses incurred byconsulting agreement or employment or consulting contract, other than physician agreements or contracts (excluding any such agreement or contract with any physician who is an officer or director of the Company or any Company Subsidiary) entered into in the ordinary course of business, consistent with past practice and other than consulting agreements or contracts (excluding any such agreement or contract entered into with an employee, officer or director of the Company or any Company Subsidiary) entered into in the ordinary course of business, consistent with past practice;
(ii) covenant not to compete or other covenant restricting the development, manufacture, marketing or distribution of the products and services of the Company or any Company Subsidiary;
(iii) Contract (other than this Agreement, a Company Benefit Plan or Company Benefit Agreement) with (A) any current or former officer, director, employee or stockholder of the Company or a Company Subsidiary (other than employment agreements covered by clause (i) above);
(iv) Contract (other than the Company Credit Facility) under which the Company or a Subsidiary has borrowed any money from, or annual payments issued any note, bond, debenture or income other evidence of indebtedness to, any person or any other note, bond, debenture or other evidence of indebtedness of the Company or a Subsidiary in any such case which, individually, is in excess of $100,000;
(v) Contract (including any so-called take-or-pay or keepwell agreements, but other than the Company Credit Facility) under which (A) any person has directly or indirectly guaranteed indebtedness, liabilities or obligations of the Company or a Company Subsidiary or (B) except for guarantees by the Company or a Company Subsidiary of indebtedness, liabilities or obligations of employees or patients of the Company or any Company Subsidiary in an aggregate amount of less than $100,000, the Company Group or a Company Subsidiary has directly or indirectly guaranteed indebtedness, liabilities or obligations of $200,000 any person (in each case other than endorsements for the purpose of collection in the ordinary course of business);
(vi) Contract under which the Company or more a Company Subsidiary has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any person (other than standard purchase the Company or a Company Subsidiary and sale orders entered into other than extensions of trade credit in the ordinary course of business);
(vii) Contract to which the Company or a Company Subsidiary is a party granting a Lien upon any Company Property or Contract granting a Lien upon any other material asset of the Company or any Company Subsidiary (except as a result of any Environmental Claim);
(viii) Contract providing (a) for indemnification by the Company or any Company Subsidiary of any current or former employee, officer, director or consultant or (b) indemnification by the Company or any Company Subsidiary of any person with respect to material liabilities relating to any current or former business of the Company, a Company Subsidiary or any predecessor person (other than, in the case of (b), contracts providing for indemnification made in the ordinary course of business consistent with past practicespractice);
(iiix) all sales, advertising, agency, sales promotion, market research, marketing or similar Contracts;
(iii) each a material Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the Company or any Subsidiary is a party;
(v) all Contracts relating to any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory made in the ordinary course of business consistent with past practices and (other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employeeenvironmental matters);
(x) all Contracts relating to property a material Contract with or assets (whether real material license or personalmaterial permit by or from any Governmental Entity, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per yearexcept any Environmental Permit;
(xi) all Contracts creating currency exchange, interest rate exchange, commodity exchange or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greatersimilar Contract;
(xii) all Contracts relating a Contract for any joint venture or partnership or any similar arrangement, to the voting or control of extent such similar arrangement involves financial consequences that are material to the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group)Company;
(xiii) all Contracts not cancellable a lease, sublease or similar agreement with respect to a Company Property providing (A) for lease payments to or by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the or any Company Group Subsidiary in excess of $200,000 100,000 per annum, or (B) for a term of more than one year, and, in each case, not terminable by the terms Company or a Company Subsidiary by notice of such contract;not more than 60 days for a cost of less than $50,000; or
(xiv) a Contract other than as set forth above to which the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject Company or a Company Subsidiary is a party or, to the Equity Incentive Planknowledge of the Company, all Contracts under by which it or any of its assets or businesses is bound or subject that is material to the benefits, compensation or payments (business of the Company and the Company Subsidiaries or the vesting thereof) will be increased use or accelerated by the consummation operation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with their assets taken as a labor union, labor organization or works councilwhole.
(b) Each Material Contract is All Contracts required to be listed in Section 3.17(a) of the Company Disclosure Letter (ithe "Company Contracts") a valid in all material respects are valid, binding and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of business, and (iv) enforceable by and against the Company Group effect and, to the Company’s Knowledge's knowledge, each counterparty that are enforceable by the Company or the applicable Company Subsidiary in accordance with their terms, subject to (i) applicable bankruptcy, insolvency, fraudulent transfer and conveyance, moratorium, reorganization, receivership and similar Laws relating to or affecting the enforcement of the rights and remedies of creditors generally and (ii) principles of equity (regardless of whether considered and applied in a proceeding in equity or at law). The Company or the applicable Company Subsidiary has performed all material obligations required to be performed by it to date under the Company Contracts, and it is not (with or without the lapse of time or the giving of notice, or both) in breach or default in any material respect thereunder and, to the knowledge of the Company, no other party theretoto any Company Contract is (with or without the lapse of time or the giving of notice, subjector both) in breach or default in any material respect thereunder. None of the Company and the Company Subsidiaries has received any written notice of the intention of any party to terminate any Company Contract, other than, in the case of this clause (iv), notices received more than twelve months prior to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of the date of this Agreement, any other party notices that have been withdrawn or which relate to a Material ContractCompany Contracts that have been renewed since the date of such notice. Complete and correct copies of all Company Contracts, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.
(c) The Company Group is in compliance in all material respects together with all covenantsmodifications and amendments thereto, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing have been made available to Parent prior to the date of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any IndebtednessAgreement.
Appears in 1 contract
Sources: Merger Agreement (Roto-Rooter Inc)
Contracts. (a) Schedule 4.14(aSet forth in (i) sets forth a true, complete and accurate list, as Section 3.13(a) of the date Company Disclosure Schedule or (ii) included as exhibits to the Filed Company SEC Documents is a list of this Agreement, of all each of the following Contracts as amended to date which are currently in effect (collectively, “Material Contracts”):
(i) all Contracts that require annual payments or expenses incurred by, or annual payments or income to, the Company Group of $200,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practices);
(ii) all sales, advertising, agency, sales promotion, market research, marketing or similar Contracts;
(iii) each Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the Company or any Subsidiary of its Subsidiaries is a party:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act), whether or not filed by the Company with the SEC;
(ii) Contract that purports to limit, curtail or restrict the ability of the Company or any of its existing or future Subsidiaries or Affiliates to compete in any geographic area or line of business or restrict the Persons to whom the Company or any of its existing or future Subsidiaries or Affiliates may sell products or deliver services, in each case, in a manner that is material to the Company and its Subsidiaries taken as a whole;
(iii) joint venture, partnership or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) Contract for the acquisition, sale or lease of material properties or assets (by merger, purchase or sale of stock or assets or otherwise) entered into since January 1, 2005 and involving aggregate consideration having value (or maximum value in the event of any transaction involving contingent consideration) as of the closing thereof of One Million Dollars ($1,000,000) or more;
(v) all Contracts relating [Intentionally omitted];
(vi) loan or credit agreement, mortgage, indenture, note or other Contract or instrument evidencing indebtedness for borrowed money by the Company or any of its Subsidiaries or any Contract or instrument pursuant to which indebtedness for borrowed money may be incurred or is guaranteed by the Company or any acquisitions or dispositions of assets of value its Subsidiaries, in each case, in excess of One Hundred Thousand ($100,000 by the Company Group 100,000);
(vii) mortgage, pledge, security agreement, deed of trust or other Contract granting a Lien (other than acquisitions or dispositions of inventory Permitted Liens arising in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition business) on any material property or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom assets of the Company Group to compete in or any line of business or industry, with any Person or in any geographic areaits Subsidiaries;
(viii) all Contracts providing for guaranteescustomer, client or where such supply Contract was entered into for the primary purpose that involves consideration in fiscal year 2008 in excess of providing indemnification, other than Standard ContractsTwo Hundred Fifty Thousand Dollars ($250,000) or that is reasonably likely to involve consideration in fiscal year 2008 or fiscal year 2009 in excess of Two Hundred Fifty Thousand Dollars ($250,000);
(ix) all Contracts Contract with respect to commissions or pertaining other consideration in connection with sale or renewal of insurance policies or related products, or services provided by the Company, in each case, accounting for revenues in excess of Two Hundred Fifty Thousand Dollars ($250,000) in fiscal year 2006 or the fiscal year 2007, or that is estimated, or would reasonably be to expected to estimated, by the Company Group management of Parent or any of its Subsidiaries, to which any Affiliate account for, revenues in excess of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employeeTwo Hundred Fifty Thousand Dollars ($250,000) in fiscal year 2008;
(x) all Contracts relating to property or assets Contract containing outstanding obligations (whether real or personal, tangible or intangiblenot measured in cash) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of Five Hundred Thousand Dollars ($200,000 per year500,000) in any twelve (12)-month period;
(xi) all Contracts creating “standstill” or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greatersimilar agreement;
(xii) all Contracts relating to the voting lease for real or control personal property containing obligations in excess of the equity interests of the Company Group or the election of directors of the Company Group Two Hundred Fifty Thousand Dollars (other than the organizational or constitutive documents of the Company Group)$250,000) per annum;
(xiii) all Contracts not cancellable Contract relating to the disposition or acquisition by the Company Group or any of its Subsidiaries after the date of this Agreement of assets with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group a fair market value in excess of Two Hundred Fifty Thousand Dollars ($200,000 per the terms of such contract;
(xiv) 250,000), other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material such Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of business, and ;
(ivxiv) enforceable by and against any acquisition Contract pursuant to which the Company Group or any of its Subsidiaries has “earn-out” or other contingent purchase price payment obligations, in each case, that have not been paid prior to the date hereof and that would reasonably be expected to result in payments by the Company or the applicable Subsidiary thereof in excess of Two Hundred Fifty Thousand Dollars ($250,000);
(xv) any Contract the termination or breach of which or failure to obtain consent in respect of would reasonably be expected to result in a Material Adverse Effect on the Company; and
(xvi) commitment or agreement to enter into any of the foregoing (the Contracts and other documents required to be listed on Section 3.13(a) of the Company Disclosure Schedule, together with any and all other Contracts of such type entered into in accordance with Section 5.2(a), each a “Material Contract”). The Company has heretofore made available to Parent correct and complete copies of each Material Contract in existence as of the date hereof, together with any and all amendments and supplements thereto and material “side letters” and similar documentation relating thereto.
(b) Each of the Material Contracts is valid, binding and in full force and effect and is enforceable in accordance with its terms by the Company and its Subsidiaries party thereto, subject to the Bankruptcy and Equity Exception, except in each case as, individually or in the aggregate, is not, or could not reasonably be expected to be, material to the Company’s Knowledge. Except as identified in Section 3.13(b) of the Company Disclosure Schedule, each counterparty that is party theretoor as would not, subject, individually or in the case of this clause (iv)aggregate, be, or reasonably be expected to be, material to the Enforceability ExceptionsCompany, no approval, consent or waiver of any Person is needed in order that any Material Contract continue in full force and effect following the consummation of the Transactions. Neither the Company Group nor, to the Company’s Knowledge, as of the date of this Agreement, any other party to a Material Contract, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred nor any of its rights or obligations Subsidiaries is in default under any Material Contract or granted other Contract to which the Company or any power of attorney its Subsidiaries is a party (collectively, the “Company Contracts”), nor, to the Knowledge of the Company, does any condition exist that, with respect notice or lapse of time or both, would constitute a default thereunder by the Company and its Subsidiaries party thereto.
(c) The , except for such defaults as, individually or in the aggregate, have not had and could not reasonably be expected to have a Material Adverse Effect on the Company. To the Knowledge of the Company, no other party to any Company Group Contract is in compliance default thereunder nor does any condition exist that with notice or lapse of time or both would constitute a default by any such other party thereunder, except for such defaults as, individually or in all material respects with all covenantsthe aggregate, including all financial covenantshave not had and could not reasonably be expected to have a Material Adverse Effect on the Company. Neither the Company nor any of its Subsidiaries has received notice of termination or cancellation under any Material Contract, received any notice of breach or default, in all notesany material respect, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments Material Contract, which breach has not been cured, or Contracts establishing granted to any third party any rights, adverse or evidencing otherwise, that would constitute a breach of any IndebtednessMaterial Contract.
Appears in 1 contract
Contracts. (a) Schedule 4.14(a) sets forth a true, complete and accurate list, as As of the date of this Agreement, of all of neither the following Contracts as amended Company nor any Company Subsidiary is a party to date which are currently in effect (collectively, “Material Contracts”):or bound by:
(i) all Contracts that require annual payments or expenses incurred by, or annual payments or income to, the Company Group of $200,000 or more any Contract relating to Indebtedness (other than standard purchase and sale orders entered into Contracts among direct or indirect wholly-owned Company Subsidiaries) in the ordinary course excess of business consistent with past practices)$15,000,000;
(ii) all salesany joint venture, advertisingpartnership, agencylimited liability company or other similar Contract relating to the formation, sales promotioncreation, market researchoperation, marketing management, sharing of profit or similar Contractslosses or control of any partnership, strategic alliance or joint venture, in each case, material to the Company and the Company Subsidiaries, taken as a whole;
(iii) each Contract any Contract, including any option Contract, relating to the acquisition or disposition, with material obligations remaining to be performed or material liabilities continuing after the date of this Agreement, of any current employee of assets, business or real property that is material to the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000and the Company Subsidiaries, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or taken as a result whole (whether by merger, sale of a change stock, sale of control of the Companyassets or otherwise);
(iv) all Contracts creating any Contract under which any Company Subsidiary licenses to any Person any material Owned Intellectual Property or any Person licenses to any Company Subsidiary any material Intellectual Property;
(v) any Contract providing for the purchase or sale of goods or services involving payments in excess of $15,000,000 in the fiscal year ended December 31, 2017 or reasonably expected to involve payments in excess of $15,000,000 for the fiscal year ending December 31, 2018, in each case, that is not terminable by the Company or the Company Subsidiaries without penalty with 90 days or less notice;
(vi) any material Contract with or material subcontract relating to a joint venture, strategic alliance, limited liability company Governmental Authority;
(vii) any Contract (including any exclusivity Contract) that limits or partnership arrangement restricts or purports to limit or restrict either the type of business in which the Company or any Company Subsidiary (or, after the Effective Time, the Surviving Corporation or its Affiliates) may engage or the manner or locations in which any of them may so engage in any business, including any covenant not to compete (geographically or otherwise), “most favored nations” or similar rights, in each case that is a party;
(v) all Contracts relating material to any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industrySubsidiaries, with any Person or in any geographic area;taken as a whole; or
(viii) all Contracts providing for guarantees, any other Contract that would be required to be filed as an exhibit to any Company SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S–K under the Securities Act) that has not been filed as an exhibit to or where such Contract was entered into for incorporated by reference in the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining SEC Documents filed prior to the Company Group to which any Affiliate date of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Except for any UBBP Contracts, the Contracts listed or required to be listed in Section 4.18(a) of the Company Disclosure Letter or filed as an exhibit to any SEC Document are referred to herein as the “Company Contracts.” Except for matters which, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Contract is Adverse Effect, (i) each Company Contract is a valid and binding agreementContract of the Company or a Company Subsidiary, (ii) as the case may be, and to the Knowledge of the Company, each other party thereto, and is in full force and effect, (iii) is on arm’s length terms and was entered into except, in each case, as enforcement may be subject to the ordinary course of business, General Enforceability Exceptions and (ivii) enforceable by and against none of the Company, any Company Group andSubsidiary or, to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case Knowledge of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of the date of this Agreement, any other party to a Material Contract, thereto is in material breach or default (whether with or without the passage notice or lapse of time or the giving of notice time, or both) in default or breach under the terms of any such Material Company Contract. The Company Group has not assigned, delegated or otherwise transferred any made available to Parent accurate and complete copies of its rights or obligations under any Material each such Company Contract or granted any power of attorney with respect thereto.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds modifications and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation amendments thereto and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtednesswaivers thereunder).
Appears in 1 contract
Contracts. (a) Schedule 4.14(a) sets Except for contracts set forth a truein the “Exhibit Index” of any Company SEC Filing filed since January 28, complete 2012 and accurate listContracts set forth in Section 4.12 of the Company Disclosure Letter, as of the date of this Agreement, of all of neither the following Contracts as amended Company nor any Company Subsidiary is a party to date which are currently in effect (collectively, “Material Contracts”):or expressly bound by any existing Contract that:
(i) all Contracts is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC);
(ii) relates to any joint venture, partnership, limited liability or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any joint venture or partnership that require annual payments or expenses incurred byis material to the business of the Company and the Company Subsidiaries, taken as a whole, or annual payments or income to, in which the Company Group owns any voting or economic interest;
(iii) is an indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other Contract providing for or securing indebtedness for borrowed money, trade payables financing arrangements, deferred payment or other Indebtedness (in each case, whether incurred, assumed, guaranteed or secured by any asset) in excess of $200,000 1,000,000;
(iv) prohibits the payment of dividends or distributions in respect of any Equity Interest of the Company or any of the Company Subsidiaries, prohibits the pledging of any Equity Interest of any Company Subsidiary or prohibits the issuance of guarantees by any Company Subsidiary, other than the Existing Credit Agreements;
(v) is a material settlement, conciliation or similar agreement (x) with any Governmental Authority or (y) which would require the Company or any Company Subsidiary to pay consideration of more than $500,000 after the date of this Agreement;
(vi) (A) contains a standstill or similar agreement pursuant to which the Company or any Company Subsidiary has agreed not to acquire assets or securities of a Third Party, or (B) which contains any “non-solicitation”, “no hire” or similar provision which restrict the Company or any Company Subsidiary in soliciting, hiring, engaging, retaining or employing such Third Party’s current or former employees in a manner or to an extent that would interfere in any material respect with the ordinary course operations of the business of the Company or the Company Subsidiaries;
(vii) relates to any acquisition by the Company or any of the Company Subsidiaries of Equity Interests or any material assets (other than standard purchase acquisitions of inventory or equipment in the ordinary course of business) pursuant to which the Company or any of the Company Subsidiaries has continuing indemnification (other than indemnification obligations with respect to directors and sale orders officers), “earn-out” or other contingent payment or guarantee obligations, in each case, that are reasonably likely to result in payments in excess of $250,000;
(viii) contains any covenant that (A) materially limits the ability of the Company or any Company Subsidiary (or after the Acceptance Time or Effective Time, Parent, the Surviving Corporation, or their respective Subsidiaries) to engage in any line of business, or to compete with any Person or operate at any geographic location, except for radius restrictions that may be contained in Contracts entered into in the ordinary course of business consistent with past practices);
(ii) all salespractice, advertising, agency, sales promotion, market research, marketing or similar Contracts;
(iii) each Contract with any current employee of expressly requiring the Company Group (A) which has continuing obligations for payment and/or any Company Subsidiary to purchase an amount of goods or services from a particular Person in an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee amount in excess of $60,000 (other than COBRA obligations 500,000 annually, or similar requirements under applicable local Law); $1,000,000 in the aggregate, or (CB) providing for a payment could require the disposition of any material assets or benefit upon the consummation material line of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result business of a change of control of the Company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the Company or any Subsidiary is a party;
(v) all Contracts relating to any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard ContractsSubsidiary;
(ix) all Contracts with involves any directors, executive officers (as such term is defined in the Exchange Act) or pertaining to the Company Group to which any Affiliate 5% stockholders of the Company Group is a party, or any of their affiliates (other than the Company or any Contracts relating to such Affiliate’s status as a Company Securityholder Subsidiary) or employeeimmediate family members;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments relates to the lessor thereunder employment of any individual on a full-time or part-time, consulting, or other basis providing for an annual base salary in excess of $200,000 per year200,000;
(xi) all Contracts creating contains a license of Intellectual Property (except for licenses of commercially available software granted to the Company or otherwise relating any Company Subsidiary) that is material to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greaterconduct of the business of the Company and the Company Subsidiaries, taken as a whole;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by its terms calls for aggregate payments by the Company Group with no or any of Company Subsidiaries of more than sixty (60) days’ notice if $1,000,000 over the effect remaining term of such cancellation would result in monetary Contract, except for (A) any such Contract that may be canceled, without any material penalty or other material liability to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary AgreementCompany Subsidiaries, upon notice of 90 days or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or less and (B) any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into purchase orders for merchandise issued in the ordinary course of business; or
(xiii) grants to any Person any right of first offer or right of first refusal to purchase, lease, sublease, use, possess or occupy all or a substantial part of the material assets of the Company or any of the Company Subsidiaries. Each contract of the type described in this Section 4.12(a) and each Contract that is listed as an exhibit to the Company’s Annual Report on Form 10-K for the fiscal year ended January 28, 2012 (ivother than those listed under “Expired Contracts” in Section 4.12(b) of the Company Disclosure Letter under which the Company and the Company Subsidiaries do not have any further material obligations or liabilities), is referred to herein as a “Company Material Contract.”
(b) Except as set forth in Section 4.12(b) of the Company Disclosure Letter and except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) each Company Material Contract is legally valid and binding on the Company and each Company Subsidiary party thereto, in full force and effect and enforceable by and against the Company Group or a Company Subsidiary in accordance with its terms, subject to the Enforceability Exception, (ii) to the knowledge of the Company, each Company Material Contract is a legally valid and binding obligation of the counterparty thereto, in full force and effect and enforceable against such counterparty in accordance with its terms, subject to the Enforceability Exception, (iii) neither the Company nor any Company Subsidiary, and, to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case knowledge of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of the date of this Agreementno counterparty, is in breach or violation of, or default under, any other party to a Company Material Contract, is in material breach (iv) to the knowledge of the Company, none of the Company or any Company Subsidiary has received written notice of any violation or default under (whether or any condition which with or without the passage of time or the giving of notice would cause such a violation of or bothdefault under) under any Company Material Contract and (v) to the terms knowledge of the Company, the Company has not received any written notice from any counterparty to any Company Material Contract that such counterparty intends to terminate, or not renew, any Company Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing As of the transactions contemplated by date of this Agreement shall not cause Agreement, true and correct copies of all Company Material Contracts (as amended or result in an event modified) are either publicly filed with the SEC or the Company has made available to Parent prior to the date hereof copies of default under any instruments or Contracts establishing or evidencing any Indebtednesssuch Company Material Contracts.
Appears in 1 contract
Sources: Merger Agreement (Talbots Inc)
Contracts. (a) Schedule 4.14(aSection 4.15(a) sets forth a true, complete and accurate list, as of the date of this Agreement, of all of Company Disclosure Letter lists the following Contracts as amended to date which are currently in effect (collectively, “Material Contracts”):the Company or any of its Subsidiaries is a party:
(i) all Contracts that require annual payments or expenses incurred by, or annual payments or income to, each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) to which the Company Group or any of $200,000 its Subsidiaries is a party to or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practices)bound;
(ii) all sales, advertising, agency, sales promotion, market research, marketing each Contract not contemplated by this Agreement that limits the ability of the Company or similar Contractsany of its Subsidiaries or Affiliates to engage in or compete with any line of business in any location or with any Person in any material manner;
(iii) each Contract that creates a partnership, joint venture or any strategic alliance with any current employee of respect to the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Companyits Subsidiaries;
(iv) all each employment, consulting, services or similar Contract with any employee or independent contractor of the Company or any of its Subsidiaries involving more than $100,000 of annual compensation;
(v) each indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other evidence of Indebtedness or Contract providing for Indebtedness individually in excess of $1,000,000;
(vi) each Contract entered into since January 1, 2016 that relates to the acquisition or disposition, directly or indirectly, of any business (whether by merger, sale of stock, sale of assets or otherwise) or any material assets, including any vessel (other than (A) this Agreement or (B) acquisitions or dispositions of supplies, inventory, merchandise or products (other than vessels) in the ordinary course of business or that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries), including also any such Contract whenever entered into that includes provisions that remain in effect in respect of “earn-outs” or deferred or contingent consideration;
(vii) each ship-sales, memorandum of agreement, bareboat charter, or other vessel acquisition Contract entered into since January 1, 2016 for Newbuildings and secondhand vessels contracted for by the Company or any of its Subsidiaries (other than Company Owned Vessels) and other Contracts creating entered into since January 1, 2016 with respect to Newbuildings of the Company or any of its Subsidiaries and the financing thereof, including performance guarantees, counter guarantees, refund guarantees, supervision agreements and plan verification services agreements;
(viii) each pool agreement, management agreement, crewing agreement or financial lease (including sale/leaseback or similar arrangements) with respect to any Company Vessel;
(ix) any Contract with a joint venture, strategic alliance, limited liability company Third Party for the charter of any Company Vessel;
(x) each collective bargaining agreement or partnership arrangement other Contract with a labor union to which the Company or any Subsidiary of its Subsidiaries is a party;
(v) all Contracts relating to any acquisitions party or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per yearotherwise bound;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate each Contract that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable provides for indemnification by the Company Group with no more than sixty (60) days’ notice if the effect or any of such cancellation would result in monetary penalty its Subsidiaries to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) any Person other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of business, and ;
(ivxii) enforceable by and against each Contract pursuant to which the Company Group and, to the Company’s Knowledge, each counterparty that is party thereto, subjector any of its Subsidiaries spent or received, in the case of this clause aggregate, more than $500,000 during the twelve (iv), 12) months prior to the Enforceability Exceptions. Neither date hereof or could reasonably be expected to spend or receive, in the aggregate, more than $500,000 during the twelve (12) months immediately after the date hereof;
(xiii) each Contract to which the Company Group nor, or any of its Subsidiaries is a party or otherwise bound that contains a so-called “most favored nations” provision or similar provisions requiring the Company or its Affiliates to offer to a Person any terms or conditions that are at least as favorable as those offered to one or more other Persons; and
(xiv) each Contract involving a standstill or similar obligation of the Company’s Knowledge, Company or any of its Subsidiaries.
(b) The Company has heretofore made available to Parent true and complete copies of the Material Contracts as in effect as of the date hereof. Except as set forth on Section 4.15(b) of this Agreementthe Company Disclosure Letter or would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) each of the Material Contracts is valid, binding, enforceable and in full force and effect with respect to the Company and its Subsidiaries, and to the Knowledge of the Company, the other parties thereto, except to the extent that the enforceability thereof may be limited by the Equitable Exceptions and except for any Material Contracts that have expired or been terminated after the date hereof in accordance with its terms, and (ii) neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Material Contract, is in material has violated any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a breach or default (whether with under, or without the passage give rise to any right of time cancellation or the giving termination of notice or both) under the terms of any consent under, such Material Contract. The , and neither the Company Group has not assigned, delegated or otherwise transferred nor any of its rights Subsidiaries has received written notice that it has breached, violated or obligations defaulted under any Material Contract or granted any power of attorney with respect theretoContract.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Contracts. (a) Schedule 4.14(a) 4.12 sets forth a truean accurate and complete list of (i) all material Contracts (A) entered into since January 1, complete 2005, (B) pursuant to which Seller is providing services or (C) which is otherwise still in effect and accurate list, as of the date of this Agreement, of all pursuant to which Seller has any Liabilities and (ii) each of the following types of Contracts as amended to date which Seller is a party or by which it is bound, or to which its assets are currently in effect (collectively, “Material Contracts”):subject:
(i) any employment, consulting, management, personal service, agency or other Contract of any kind with an employee, officer or member of Seller or any of its Affiliates;
(ii) any loan agreement, credit facility or other similar Contract pursuant to which Seller has made any loans or advances that are outstanding or will make any loans or advances;
(iii) any loan agreement, credit facility or other similar Contract pursuant to which Seller has or will incur debts or become a guarantor or surety or pledged its credit on behalf of or otherwise become responsible with respect to an undertaking by another Person (except for the negotiation or collection of negotiable instruments in transactions in the ordinary course);
(iv) any Contract involving a partnership, joint venture, or other cooperative undertaking;
(v) any Contract involving any restriction with respect to the geographic area of operations or scope or type of business of Seller;
(vi) any Contract involving the provision of consulting or other services by or on behalf of Seller, including all Contracts that require annual payments evidencing the In-Process Engagements and Support Engagements;
(vii) all Contracts by which Seller licenses or expenses incurred by, or annual payments or income to, otherwise obtains the Company Group right to use the Intellectual Property Rights of $200,000 or more any other Person (other than click-wrap, shrink-wrap or similar standard purchase end-user object code licenses to commercially available off-the-shelf software) or by which Seller is restricted in its right to use or register, or licenses or otherwise permits any other Person to use or register, Intellectual Property Rights;
(viii) any Contract that requires Seller to obtain the Consent of a Person upon the occurrence of a change of control or which gives a Person a right of termination, amendment, cancellation or acceleration upon the occurrence of a change of control;
(ix) any Contract pursuant to which Seller leases any material items of tangible personal property;
(x) any material Contract pursuant to which Seller leases any real property (whether by virtue of direct lease, ground lease or sublease) (each, a “Material Lease”) and sale orders any additional Contract pursuant to which Seller leases any real property (whether by virtue of direct lease, ground lease or sublease) but which would not be considered material to the operation of Seller (each, an “Additional Lease” and together with the Material Leases, the “Leases”);
(xi) any agreement by which Seller indemnifies or holds harmless any other Person other than agreements entered into in the ordinary course of business consistent with past practices);practice; and
(iixii) all salesany agreement involving the acquisition, advertising, agency, sales promotion, market research, marketing merger or similar Contracts;
(iii) each Contract with any current employee purchase of the Company Group (A) which has continuing obligations for payment assets or business of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (a Person other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the Company or any Subsidiary is a party;
(v) all Contracts relating to any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions purchases of inventory and equipment in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works councilpractice.
(b) Seller has delivered to Purchaser accurate and complete copies of each Contract set forth on Schedule 4.12. Each Material Contract listed or required to be listed on such schedule is (i) a valid and binding agreementlegal, (ii) in full force and effectvalid, (iii) is on arm’s length terms and was entered into in the ordinary course binding, obligation of business, and (iv) enforceable by and against the Company Group Seller and, to the Company’s KnowledgeKnowledge of Seller, each counterparty that the other Persons party thereto and is party theretoenforceable in accordance with the terms thereof, subject, in the case of this clause (iv), subject to the Enforceability ExceptionsLimitations. Neither the Company Group norSeller is not in material breach or material default of any Contract, and to the Company’s KnowledgeKnowledge of Seller, as of the date of this Agreement, any (i) no other party to a Material Contract, any such Contract is in material breach or material default thereof and (whether ii) no event has occurred which, with or without the passage of time or the giving of notice or both) lapse of time, would constitute a material breach or material default, or permit termination, modification or acceleration under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Sources: Asset Purchase Agreement (Huron Consulting Group Inc.)
Contracts. (a) Except as listed in Schedule 4.14(a5.17(a) sets forth a true, complete and accurate listof the --------- ---------------- Advance Disclosure Memorandum, as of August 10, 1998, none of Advance or any of its Subsidiaries is a party to or subject to:
(i) any lease providing for annual rentals or an aggregate rental of $50,000 or more;
(ii) any Contract for the purchase of materials, supplies, goods, services, equipment or other assets which either provides for payment by Advance or its Subsidiaries of $250,000 or more annually or extends for a term of greater than one year, or any material agreement in the form of a requirements, exclusive dealing or take-or-pay arrangement (except that with respect to merchandise vendor Contracts, Schedule 5.17(a) of the Advance Disclosure Memorandum shall only set ---------------- forth the top 25 merchandise vendors by purchased volume);
(iii) any sales, agency, distribution or other similar agreement providing for the sale by Advance or any of its Subsidiaries of materials, supplies, goods, services, equipment or other assets that, for the period subsequent to January 1, 1997, provided any revenue in excess of $250,000 (during the course of one year) to Advance or any of its Subsidiaries or any other such agreements to be performed subsequent to the date of this Agreement, of all of the following Contracts as amended to date which are currently in effect (collectively, “Material Contracts”):
(i) all Contracts that require annual payments or expenses incurred by, or annual payments or income to, the Company Group of $200,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practices);
(ii) all sales, advertising, agency, sales promotion, market research, marketing or similar Contracts;
(iii) each Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all Contracts creating a any partnership, joint venture, strategic alliance, limited liability company venture or partnership other similar contract arrangement to which the Company or any Subsidiary is a partyagreement;
(v) all Contracts relating any option agreement, license agreement, franchise agreement or other agreement in respect of similar rights granted to or by or held by Advance or any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing)its Subsidiaries;
(vi) all IP Contractsany material agreement, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting contract or commitment that substantially limits the freedom of the Company Group Advance or any of its Subsidiaries to compete in any line of business or industry, with any Person or in any geographic areaarea or to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any of their material assets;
(vii) any written agreement or contract with or for the benefit of any Affiliate of Advance;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contractsany labor union contract;
(ix) all Contracts any agreement, contract or commitment with any employee, executive, director or pertaining officer of Advance or any of its Subsidiaries, including agreements related to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employeeseparation from employment;
(x) all Contracts relating any agreement or commitment pursuant to property which Advance or assets any of its Subsidiaries (whether real A) will make loans or personaladvances, tangible (B) has or intangiblewill have incurred debts or (C) will become a guarantor or surety or pledged its credit on or otherwise become responsible with respect to any undertaking of another (except in which the Company Group holds a leasehold interest case of each of (including the LeaseA), (B) and which involve payments to (C), for the lessor thereunder in excess negotiation or collection of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into negotiable instruments in the ordinary course of business, and (iv) enforceable by and against the Company Group and, to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of the date of this Agreement, any other party to a Material Contract, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.;
(cxi) The Company Group is in compliance in all any material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments advertising or Contracts establishing or evidencing event sponsorship agreement;
(xii) any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.tax sharing agreement;
Appears in 1 contract
Sources: Merger Agreement (Laralev Inc)
Contracts. (a) Section 2.15(a) of the Disclosure Schedule 4.14(a) sets forth a true, complete and accurate listforth, as of the date hereof, a true and complete list of this Agreement, of all any of the following Contracts as amended (excluding any statements of work or purchase orders entered into in the ordinary course of business) to date which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or any of their respective properties or assets are currently in effect (collectively, “Material Contracts”):bound:
(i) all Contracts collective bargaining agreement or other Contract with any labor organization, union or labor association;
(ii) Contract for the employment of any Participant on a full-time or consulting basis providing for base salary compensation in excess of $200,000 per annum, except for offer letters for at-will employees that require annual payments can be terminated for no consideration other than accrued compensation, benefits and severance consistent with the Company's past practice;
(iii) Contract for any joint venture, partnership or expenses incurred bysimilar arrangement;
(iv) agreement or indenture relating to the borrowing of money or incurrence of indebtedness or to mortgaging, pledging or otherwise placing a Lien, except for Permitted Liens, on any material portion of the assets of the Company and its Subsidiaries;
(v) guaranty of any obligation for borrowed money or other material guaranty;
(vi) Contract under which the Company or a Subsidiary of the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or annual payments or income toother investment in, any Person (other than the Company Group or a Subsidiary of the Company), in any such case which, individually, is in excess of $100,000;
(vii) Contract (other than for Off-the-shelf Software or non-exclusive licenses of Intellectual Property entered into in the ordinary course of business) that licenses material Intellectual Property to the Company or any of its Subsidiaries, or under which the Company or one of its Subsidiaries grants a license to material Intellectual Property except for (i) such licenses that are incidental or ancillary to the sale, licensing or provision of products or services, (ii) customer agreements or purchase orders and (iii) any programming or retransmission agreements scheduled pursuant to Section 2.15(a)(xvi), and (iv) employment or confidentiality agreements (each, a "License Agreement");
(viii) Real Property Lease for any Leased Real Property;
(ix) lease or agreement under which the Company or any of its Subsidiaries is lessee of, or holds or operates any personal tangible property owned by any other party, for which the annual rental exceeds $100,000, excluding any agreements that are the subject of any other clause of this Section 2.15(a) (including those not required to be disclosed because of a specific dollar or materiality threshold contained in such clause);
(x) lease or agreement under which the Company or any of its Subsidiaries is lessor of or permits any third party to hold or operate any tangible personal property, for which the annual rental exceeds $100,000, excluding any agreements that are the subject of any other clause of this Section 2.15(a) (including those not required to be disclosed because of a specific dollar or materiality threshold contained in such clause);
(xi) Contract to sell any of the Company or its Subsidiaries' properties or assets for consideration in excess of $200,000 or more any properties or assets that are material to the Company and its Subsidiaries, taken as a whole;
(xii) Contracts or group of related Contracts (A) representing the Company's and its Subsidiaries' Contracts with their top ten (10) customers based on the amount of payment to the Company or its Subsidiaries or (B) with the same party for the sale of products or services by the Company or its Subsidiaries providing for payment to the Company or its Subsidiaries in excess of $500,000 (provided that for purposes of the definition of "Material Contracts" only, the applicable threshold shall be $200,000) from such customers during the calendar year 2020;
(xiii) Contracts or group of related Contracts, other than purchase orders entered into in the ordinary course of business and video programming agreements (A) representing the Company's and its Subsidiaries' Contracts with their top ten (10) suppliers or vendors based on the amount of payment by the Company or its Subsidiaries or (B) with the same party for the purchase of materials, supplies, equipment, products or services providing for payments in excess of $500,000 to such suppliers or vendors during the calendar year 2020;
(xiv) Contracts relating to any completed business acquisition by the Company or its Subsidiaries within the three (3)-year period ended on the date of this Agreement or under which the Company or any of its Subsidiaries is or may become obligated to pay any amount in respect of an "earn out", deferred or conditional purchase price, purchase price adjustment or other similar obligations (collectively, the "Recent Acquisition Agreements");
(xv) Contract relating to any pending business acquisition by the Company or any of its Subsidiaries;
(xvi) programming or retransmission consent Contract (including any programming agreements with the National Cable Television Cooperative);
(xvii) Contract relating to the use of any public utility facilities, including all pole line, joint pole or master contracts for pole attachment rights, other rights-of-way or encroachment permits or the use of conduits by the Company or its Subsidiaries and agreements necessary to permit the Company and its Subsidiaries to install, maintain, operate and use utility and rail road company poles, in each case, in which the Company or its Subsidiaries spent in excess of $500,000 during the past 12 months;
(xviii) Contract for the use of any programming transport agreements in which the Company or its Subsidiaries spent in excess of $100,000 during the calendar year 2020;
(xix) Contract with multiple dwelling units or commercial establishments under which the Company or its Subsidiaries generated revenues in excess of $100,000 during the calendar year 2020;
(xx) (A) fiber or fiber-swap agreement, (B) circuit agreement, (C) traffic exchange agreement, (D) interconnection agreement, (E) billing agreement, (F) agreement for the provision of IVR services or (G) indefeasible right of use (IRU) agreements, in each case, under which the Company or its Subsidiaries generated revenue or spent, as applicable, in excess of $200,000 during the calendar year 2020;
(xxi) material Contract granting to the counterparty any rights of first refusal, first negotiation, first offer or similar right or Contract that materially limits or purports to materially limit the ability of the Company or its Subsidiaries or other Affiliates to own, operate, sell, transfer, or otherwise dispose of its material assets (other than standard purchase the rights of first refusal, negotiation, offer or similar right that relates to the Company's or its Subsidiaries' advertising availabilities);
(xxii) Contract containing any material limitation on the freedom of the Company or any of its Subsidiaries or other Affiliates to operate its business or engage in any line of business, solicit or engage in business from or with any Person or compete with any Person or to operate at any location in the world, including non-competition and sale orders customer non-solicitation obligations, exclusivity rights and "most favored nation" provisions (other than in (a) confidentiality agreements executed in connection with potential transactions, including the Transactions, and those entered into in the ordinary course of business consistent with past practices, and (b) video service, programming and retransmission consent agreements);
(iixxiii) all salesContract that is a settlement, advertising, agency, sales promotion, market research, marketing conciliation or similar Contractsagreement with any Governmental Authority that imposes any material unpaid monetary or other ongoing obligation upon the Company or any of its Subsidiaries;
(iiixxiv) each Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement equityholder or any Ancillary Agreement or as a result other Affiliate of a change of control of the Company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the Company or any Subsidiary is a partyof its Subsidiaries;
(vxxv) all Contracts relating to any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group standalone confidentiality agreement (other than acquisitions or dispositions of inventory those executed in connection with the Transactions and those entered into in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with potential acquisitions) obligating the Equity Incentive Plan and subject Company or its Subsidiaries to the Equity Incentive Plan, all Contracts under which keep information confidential; or
(xxvi) commitment or agreement to enter into any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works councilforegoing.
(b) Each Material True and complete copies, as of the date hereof, of all written Contracts that are referred to in Section 2.15(a) (such Contracts, together with any Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into after the date hereof that would have been required to be listed in Section 2.15(a) of the Disclosure Schedule if such Contract had been entered into prior to the date hereof, and including for this purpose any statements of work or purchase orders not required to be listed in Section 2.15(a), the "Material Contracts"), together with all material amendments, waivers, consents and other changes thereto, have been made available to CABO in all material respects, other than Contracts with the National Cable Television Cooperative, statements of work and purchase orders in the ordinary course of business. Each Material Contract is valid and binding on the Company or one of its Subsidiaries, as applicable, and to the Company's Knowledge, each other party thereto, and is in full force and effect and enforceable in accordance with its terms (ivsubject to the Bankruptcy and Equity Exception), in each case, in all material respects. Except as set forth on Section 2.15(b) enforceable by and against of the Disclosure Schedule, the Company Group and each of its Subsidiaries and, to the Company’s 's Knowledge, each counterparty that is any other party thereto, subjecthas performed in all material respects all obligations required to be performed by it under each Material Contract. To the Company's Knowledge, no event in the case nature of this clause (iv)a default has occurred which, to with notice, lapse of time or both, would permit the Enforceability Exceptionstermination, acceleration in any material respect or modification in any material respect of any Material Contract by any party thereto. Neither the Company Group nornor any of its Subsidiaries has provided or received any written notice of any intention to terminate any Material Contract. There are no material disputes pending or, to the Company’s Knowledge, as Knowledge of the date of this AgreementCompany, any other party threatened with respect to a Material Contract, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power counterparty thereto. Neither the Company nor any Subsidiary of attorney with respect theretothe Company has made a claim for indemnification under any of the Recent Acquisition Agreements and, other than as set forth on the Disclosure Schedules, the Company is not aware of any breaches of any Recent Acquisition Agreement by the other party(ies) thereto or the basis for any claim for indemnification under any Recent Acquisition Agreement.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing (i) Except as set forth on Section 2.15(c)(i) of the transactions contemplated by this Agreement shall not cause Disclosure Schedule, the Company has no Knowledge of any material pending audits with respect to any utility attachment or result in an event of default conduit usage under any instruments pole attachment agreement or Contracts establishing any unresolved material disputes with respect to any such audit and the Company and its Subsidiaries have not received any written notice of any such planned audit, and (ii) the Company and its Subsidiaries have paid all pole attachment fees (including any penalties, charges or evidencing any Indebtednessother fees charged pursuant to the pole attachment agreement) relating to the System when due and payable, except where the failure to make such payment would not reasonably be expected to be, individually or in the aggregate, material to the operation of such System.
Appears in 1 contract
Contracts. (a) Schedule 4.14(aSection 3.15 of the Company Disclosure Letter lists each of the following written contracts and agreements (other than any lease of Company Leased Real Property and contracts and agreements relating to Intellectual Property) sets forth to which the Company or any of its Subsidiaries is a true, complete and accurate list, party that is in effect as of the date of this AgreementAgreement (each such Contract or arrangement, of all of together with any such contracts or arrangements entered into after the following Contracts as amended to date which are currently in effect (collectivelyhereof, collectively being “Material Contracts”):
(i) all Contracts that require annual payments or expenses incurred by, or annual payments or income to, the Company Group of $200,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practices);
(ii) all sales, advertising, agency, sales promotion, market research, marketing or similar Contracts;
(iii) each Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all Contracts creating a joint venture, partnership or strategic alliancealliance contract or investment agreement, limited liability company in each case related to the formation, creation, operation, management or control of any partnership arrangement to or joint venture in which the Company or any Subsidiary of its Subsidiaries owns any partial interest and that is a party;
(v) all Contracts relating material to any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industryand its Subsidiaries, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnificationtaken as a whole, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining revenue sharing agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of business;
(ii) any settlement, and (iv) enforceable by and against conciliation or similar contract which would require the Company Group and, or any of its Subsidiaries to pay consideration of more than $2,000,000 (after taking into consideration any insurance proceeds available to the Company’s KnowledgeCompany or any of its Subsidiary, each counterparty that is party thereto, subjectas applicable, in the respect thereof) or to satisfy any material non-monetary obligations, in each case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of after the date of this Agreement;
(iii) any contract that contains any covenant limiting, any other party to a Material Contract, degree that is in material breach to the Company or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights Subsidiaries, the ability of the Company or any of its Subsidiaries, as applicable, to engage in any line of business or compete with any Person, in each case in any geographic area (excluding any contracts entered into with distributors or suppliers in the ordinary course of business);
(iv) (A) for the acquisition, directly or indirectly (by merger or otherwise) of a material portion of the assets (other than goods, products or services in the ordinary course) or capital stock or other equity interests of any Person for aggregate consideration in excess of $2,000,000 and that has not closed prior to the date hereof or pursuant to which the Company or any of its Subsidiaries has continuing indemnification (other than indemnification obligations under any Material Contract or granted any power of attorney with respect thereto.to current or former directors and officers), “earn-out” or other similar contingent payment obligations that are reasonably expected to exceed $2,000,000 in the aggregate after the date hereof or (B) gives any Person the right to acquire any assets of the Company or any of its Subsidiaries (excluding ordinary course commitments to purchase goods, products or services) after the date hereof with a total consideration of more than $2,000,000; and
(cv) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any IndebtednessAffiliate Arrangements.
Appears in 1 contract
Contracts. (a) Schedule 4.14(aExcept (x) sets for this Agreement, (y) for a Company Plan or the Company Share Plans and (z) as set forth a truein Section 3.8(a) of the Company Disclosure Letter, complete and accurate listneither the Company nor any of its subsidiaries is party to or bound by, or has any property or asset bound by, any Contract, as of the date of this Agreement, of all of the following Contracts as amended to date which are currently in effect (collectively, “Material Contracts”):that:
(i) all Contracts that require annual payments or expenses incurred by, or annual payments or income to, would be required to be filed by the Company Group as a "material contract" pursuant to Item 601(b)(10) of $200,000 Regulation S-K of the Securities Act or more (other than standard purchase and sale orders entered into disclosed by the Company on a Current Report on Form 8-K, Annual Report on Form 10-K or Quarterly Report on Form 10-Q that has not been filed or incorporated by reference in the ordinary course of business consistent with past practices)SEC Reports;
(ii) all sales, advertising, agency, sales promotion, market research, marketing or similar Contracts;
(iii) each Contract with contains any current employee covenant that materially restricts the ability of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the Company or any Subsidiary is of its subsidiaries, taken as a party;
whole, to (vA) all Contracts relating to engage in any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group business, (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(viB) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or Person, (C) operate in any geographic area;
area or (viiiD) all Contracts providing for guarantees, solicit or where such Contract was entered into for the primary purpose of providing indemnification, hire any employee or consultant other than Standard Contracts;
(ix) all Contracts with or pertaining pursuant to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining non-disclosure agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of business;
(iii) is a joint venture, and partnership, limited liability or other similar agreement or arrangement or Contract relating to the formation, creation, operation, management or control of any partnership, joint venture, limited liability company or other similar agreements or arrangements or Contracts;
(iv) enforceable by and against is an indenture, credit agreement, loan agreement, security agreement, guarantee, bond, mortgage or other Contract (including any swap or hedge agreements) relating to indebtedness of the Company Group andor any of its subsidiaries (for the avoidance of doubt, other than Contracts related to vault cash arrangements), in each case, in excess of $1,000,000;
(v) is a Contract related to vault cash arrangements with any financial institution;
(vi) is a settlement, conciliation or similar Contract with any Governmental Entity;
(vii) requires the Company or any of its subsidiaries, directly or indirectly, to make any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or any of its wholly owned subsidiaries) in any such case which is in excess of $500,000;
(viii) 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 subsidiary of the Company or prohibits the issuance of guarantees by the Company or by any subsidiary of the Company’s Knowledge;
(ix) (A) contains "most favored nation" pricing provisions which impose obligations on the Company or any of its subsidiaries with any third party, each counterparty that is party theretoor (B) grants exclusive rights, subjectrights of first refusal, rights of first negotiation or offer or similar rights to any Person other than the Company or any of its subsidiaries;
(x) has resulted in payments by the Company and its subsidiaries to vendors of more than $2,000,000 in the case of aggregate for the 12 month period ending June 30, 2020 (other than this Agreement, Contracts subject to clause (iv) above, purchase orders for the purchase of inventory and/or equipment in the ordinary course of business or Leases), ;
(xi) has given rise to the Enforceability Exceptions. Neither aggregate revenue (including termination fees) by the Company Group nor, and its subsidiaries under such Contract(s) of more than $2,000,000 during fiscal year 2019;
(xii) with respect to any acquisition and divestiture pursuant to which the Company’s Knowledge, as of the date of this Agreement, any other party to a Material Contract, is in material breach Company or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights subsidiaries has continuing indemnification, guarantee, "earn-out" or obligations under any Material Contract or granted any power other contingent payment obligations, in each case, that would reasonably be expected to result in payments in excess of attorney with respect thereto.$2,000,000;
(cxiii) The involving the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or share capital or other equity interests for aggregate consideration under such Contract of at least $1,000,000 individually, or $2,000,000 in the aggregate;
(xiv) is between the Company Group is or any of its subsidiaries, on the one hand, and any director or officer of the Company or any Person beneficially owning five percent (5%) or more of the outstanding Company Shares, on the other hand, except for any Company Plan and any Contracts entered into on arm's-length terms in compliance in all material respects with all covenantsthe ordinary course of business;
(xv) requires a consent to or otherwise contains a provision relating to a "change of control" or that would or could reasonably be expected to prevent, including all financial covenants, in all notes, indentures, bonds and other instruments delay or Contracts establishing or evidencing any Indebtedness. The impair the consummation and closing of the transactions contemplated by this Agreement shall herein, including the Acquisition;
(xvi) involves the payment of royalties to, or receipt of royalties from, any Person (other than the Company or any of its subsidiaries) of more than $1,000,000 in the aggregate pursuant to a license that is material to the Company and its subsidiaries taken as a whole; or
(xvii) is a Contract pursuant to which any third party grants to the Company or any of its subsidiaries a license, right or covenant not cause to s▇▇ with respect to any Licensed Intellectual Property that is material to the Company and its subsidiaries taken as a whole (other than (1) intercompany licenses between the Company and any of its subsidiaries, (2) licenses for Open Source Software or result in an event (3) licenses for Software that is generally commercially available on standard terms for less than $300,000 (based on the dollar value of default under any instruments or Contracts establishing or evidencing any Indebtednessexpenditures from fiscal year 2019)).
Appears in 1 contract
Contracts. (a) Schedule 4.14(a3.18(a) sets forth a true, complete and accurate list, as of the date Disclosure Schedule contains a list of this Agreement, of all each of the following Contracts as amended contracts, agreements or other arrangements to date which Seller is a party or by which any of its assets or properties, including, without limitation, the Acquired Assets and the Business, are currently in effect bound (collectively, the “Material Scheduled Contracts”):
(i) all Contracts agreement (or series of agreements with the same counterparty or its Affiliates) that require annual payments involves the delivery of goods, materials or expenses incurred by, or annual payments or income to, the Company Group services to Seller that may result in consideration paid by Seller in excess of $200,000 25,000, either individually or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practices)aggregate;
(ii) all salesagreement (or series of agreements with the same counterparty or its Affiliates) that involves the delivery of goods, advertisingmaterials or services by Seller that may result in consideration paid to Seller in excess of $25,000, agency, sales promotion, market research, marketing either individually or similar Contractsin the aggregate;
(iii) each Contract with any current employee of the Company Group (A) which has continuing obligations agreement that provides for payment of an annual compensation of at least $200,000purchase discounts, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations vendor allowances or similar requirements under applicable local Law); refunds or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Companyrebates;
(iv) all Contracts creating a joint ventureany consignment or similar agreement related to Inventory or other merchandise in Seller’s retail locations, strategic alliancewarehouses, limited liability company or partnership arrangement to which the Company or any Subsidiary is a partydistribution centers;
(v) all Contracts relating to collective bargaining agreement or other similar contract with any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing)labor union;
(vi) all IP Contractsagreement for the employment of any Person on a full-time, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunderpart-time, consulting or other basis;
(vii) all Contracts limiting agreement, guaranty or indenture relating to borrowed money or other Debt of Seller (including, without limitation, any guarantees related thereto) or any material Lien on any asset of Seller or any Affiliate of Seller to the freedom extent related to the Business;
(viii) agreement that restricts the ability of Seller or the Company Group Business to compete engage in any line of business or industry, compete with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard ContractsPerson;
(ix) all Contracts joint venture or partnership agreement involving a sharing of profits, losses, costs or liabilities by Seller or the Business with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employeePerson;
(x) all Contracts relating lease or agreement under which Seller is (A) lessee of or holds or operates any Other Tangible Personal Property owned by any other Person, or (B) lessor of or permits any other Person to property hold or assets (whether real operate any Other Tangible Personal Property owned or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per yearleased by Seller;
(xi) all Contracts creating lease or otherwise relating agreement under which Seller is (A) lessee of or holds or operates any real property (including, without limitation, the Leased Real Property and any guarantees related to outstanding Indebtedness any such Real Property Leases) or (B) lessor of or permits any other than intercompany Indebtedness) in the aggregate that are valued at $250,000 Person to hold or greateroperate any real property owned or leased by Seller;
(xii) all Contracts relating agreement that relates to any tenant improvements with respect to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group)Leased Real Property;
(xiii) all Contracts not cancellable by the Company Group with no more than sixty agreement (60including, without limitation, any license, sublicense or other permission) days’ notice if the effect of such cancellation would result in monetary penalty relating to the Company Group development, ownership, licensing or use of any Intellectual Property, including, without limitation, in excess of $200,000 per the terms of such contractAcquired Assets, other than any agreement for Commercially Available Software;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection power of attorney granted by or to Seller or by or to Shareholder with the Equity Incentive Plan and subject respect to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; andBusiness;
(xv) all collective bargaining agreements agreement with, or loan to or from, any director, officer, employee, agent or other agreement with a labor union, labor organization or works council.Affiliate of Seller;
(bxvi) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was agreement not entered into in the ordinary course of business;
(xvii) other agreement (or series of agreements with the same counterparty or its Affiliates) that (A) involves the payment or potential payment, and (iv) enforceable by and against the Company Group and, pursuant to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of the date of this Agreement, any other party to a Material Contract, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has contract or agreement, to or by Seller of more than $25,000, either individually or in the aggregate, and (B) cannot assignedbe terminated within 30 days after giving notice of termination without resulting in any cost or penalty to Seller or, delegated following the Closing, Buyer; and
(xviii) other agreement that is material to Seller or otherwise transferred the Business.
(b) There are no contracts, agreements or other arrangements to which Seller or Shareholder is a party or by which any of its assets or properties, including, without limitation, the Acquired Assets and the Business, are bound which would constitute a Scheduled Contract, except as set forth on Schedule 3.18(a) of the Disclosure Schedule. Seller has provided to Buyer a true, correct and complete copy of each written Scheduled Contract and an accurate written description of the material terms of each oral Scheduled Contract. Each Scheduled Contract has been entered into on an arm’s-length basis and, is a valid and binding obligation of Seller and, to Seller’s Knowledge, each of the other parties thereto, enforceable against them in accordance with its express terms except as such enforceability may be limited by: (i) applicable insolvency, bankruptcy, reorganization, moratorium or other similar laws affecting creditors’ rights generally; and (ii) applicable equitable principles (whether considered in a proceeding at law or obligations under in equity). To Seller’s Knowledge, no course of conduct of any Material Contract or granted party to any power of attorney Scheduled Contract, with respect thereto.
(c) The Company Group to the performance of its obligations or exercise of its rights thereunder, is inconsistent with the express terms and conditions of said Scheduled Contract. To Seller’s Knowledge, no Person is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments violation or Contracts establishing breach of or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of material default under any instruments Scheduled Contract. Except as set forth on Schedule 3.2(b)(iii) or Contracts establishing Schedule 3.2(b)(v) of the Disclosure Schedule, the Transaction does not require the consent of any party to any Scheduled Contract, will not result in a violation or evidencing breach of or default under any IndebtednessScheduled Contract and will not otherwise cause any Scheduled Contract to cease to be legal, binding, enforceable and in full force and effect on the same terms following the Closing. Except as set forth on Schedule 3.18(b) of the Disclosure Schedule, there are presently no renegotiations of, or attempts to renegotiate any material provision (including, without limitation, fees or other payment amounts) under any Scheduled Contract and no Person has made any written demand to Seller or any of its Representatives for such renegotiation.
Appears in 1 contract
Contracts. Schedule 2.6 hereto contains a list of the following contracts and other agreements relating to the Business or by which it or any of the Acquired Assets are bound or affected (and irrespective of whether Sellers or any Affiliates of Sellers are party thereto):
(a) Schedule 4.14(a) sets forth any agreement whereby any Seller leases or rents to a true, complete and accurate list, as of the date of this Agreement, of all of the following Contracts as amended to date which are currently in effect (collectively, “Material Contracts”):
(i) all Contracts that require annual payments or expenses incurred by, or annual payments or income to, the Company Group of $200,000 customer one or more trailers (other than standard purchase including any schedule or amendment thereto or assignment, assumption, renewal or novation thereof and sale orders entered into in the ordinary course of business consistent with past practicesany modification, amendment, supplement or letter agreement thereof or thereto) (a "Trailer Lease");
(iib) all sales, advertising, agency, sales promotion, market research, marketing any other agreement (or similar Contracts;
group of related agreements) for the lease of (iiii) each Contract with personal property to or from any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) Person providing for severance or post-termination lease payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); 50,000 per annum or (Cii) providing for a payment real property to or benefit upon the consummation of the transactions contemplated by this Agreement or from any Ancillary Agreement or as a result of a change of control of the CompanyPerson;
(ivc) all Contracts creating any agreement (or group of related agreements) for the purchase or sale of trailer parts, raw materials, commodities, supplies, inventory, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a joint venture, strategic alliance, limited liability company period of more than one year or partnership arrangement to which the Company or any Subsidiary is a party;
(v) all Contracts relating to any acquisitions or dispositions of assets of value involves consideration in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing)50,000;
(vid) all IP Contractsany agreement concerning a partnership, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business limited liability company, joint venture or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a partysimilar arrangement, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employeeOrganizational Materials;
(xe) all Contracts relating to property any agreement (or assets (whether real or personal, tangible or intangiblegroup of related agreements) in under which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating Business has created, incurred, assumed, secured or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 guaranteed any material indebtedness for borrowed money, or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts any capitalized lease obligation under which any of the benefits, compensation assets or payments (or the vesting thereof) will be increased or accelerated by the consummation properties of the transactions contemplated by this Agreement Business (tangible or intangible) have been subjected to a Lien;
(f) any agreement concerning confidentiality or noncompetition that relates to the Business or any Ancillary AgreementAcquired Assets;
(g) any profit sharing, deferred compensation, severance, termination, retention or other similar plan, agreement or arrangement for the benefit of any Employee or Former Employee, other than the Benefit Plans;
(h) any agreement for the employment of any individual in the Business on a full-time, part-time, consulting, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; andother similar basis;
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) any agreement otherwise material to the Business, or under which the consequences of a valid and binding default or termination would have a Material Adverse Effect or a material adverse effect on the value to Buyers, or on the possession, use, occupancy or operation, of the Business or the Acquired Assets;
(j) any agreement concerning Intellectual Property relating to the Business, except for those Excluded Assets identified on Schedule 1.1(c)(xii);
(k) any distribution, dealer, representative or sales agency agreement relating to the Business;
(l) any agreement which provides for quantity price discounts, rebates or other allowances for customers based upon purchases of goods from the Business;
(m) any labor agreement (including any material side agreements thereto) with any union or recognized collective bargaining agent relating to the Business;
(n) any agreement, contract or commitment for any capital expenditure or leasehold improvement in excess of $25,000 individually or $75,000 in the aggregate;
(iio) in full force and effectany agreement, contract or commitment under which Sellers have advanced or loaned funds to any Person, including any of the Employees, Sellers or any Affiliates of Sellers (iii) is on arm’s length terms and was entered into other than contracts solely relating to expenses advanced to Employees in the ordinary course of business);
(p) any agreement, contract or commitment which relate to inventions by Employees (other than standard nondisclosure forms signed by Employees generally, copies of which have been provided to Buyers);
(q) any agreement, contract or commitment relating to Tax or with any Authority;
(r) any agreement, contract or commitment between or among any Seller, on the one hand, and any other Seller, any Affiliate of Sellers or any director, officer or Employee thereof, on the other hand;
(ivs) any agreement, contract or commitment by Sellers for the purchase or sale of any business, corporation, partnership, joint venture, association or other business organization or any division, material assets, operating unit or product line thereof;
(t) any other agreement (or group of related agreements) which has a term of one year or more or exceeding $50,000 in value, or entered into outside of the ordinary course of business. Sellers have delivered or made available to Buyers a correct and complete copy of each written agreement listed in Schedule 2.6 and a written summary setting forth the material terms and conditions of each oral agreement referred to therein. Except as set forth in Schedule 2.6, Sellers have not sold, assigned or otherwise granted to any party (including any lessee under a Trailer Lease or other vehicle or equipment lease) any present or future right or option to acquire any ownership interest in any trailer, vehicle or equipment under a Trailer Lease or other vehicle or equipment lease or to retain any such trailer, vehicle or equipment without paying a reasonable rental therefore after the expiration of the term of such lease. To the Knowledge of Sellers, there are no oral Contracts, or oral modifications to any Contracts, that would otherwise be required to be listed on Schedule 2.6. With respect to each Contract (whether or not disclosed, or required to be disclosed, in Schedule 2.6): (i) the agreement is a legal, valid and binding obligation of (A) each Seller, enforceable by and against the Company Group each such Seller and, to the Company’s Sellers' Knowledge, each counterparty that is party (B) the other Parties thereto, subject, enforceable against such Parties (except in the each case of this clause (iv), to the Enforceability Exceptions. Neither extent that such enforceability may be subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the Company Group norenforceability of creditors rights generally and by general equitable principles) and in each case in full force and effect; (ii) neither Sellers, nor to the Company’s Sellers' Knowledge, as of the date of this Agreement, any other party to a Material Contractthereto, is in material breach or default default, and no event has occurred (whether or is likely to occur) which with notice or lapse of time (or both) would constitute a breach or default, or permit termination, modification, or acceleration, under the agreement; (iii) no party has repudiated or, to Sellers' Knowledge, threatened to repudiate any provision of the agreement; (iv) except as otherwise noted in Schedule 2.6, each Seller is, and to Sellers' Knowledge, all other Parties thereto are, in compliance with the provisions thereof in all material respects; and (v) consummation of the transactions contemplated hereby, with or without the passage of time or the giving of notice or the lapse of time or both) under the terms , will not give rise to a right of any such Material Contract. The Company Group has not assignedmodification, delegated termination, or otherwise transferred any amendment, or a loss of its rights or obligations under any Material Contract or granted any power of attorney with respect theretoa benefit thereunder.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Sources: Asset Purchase Agreement (Wabash National Corp /De)
Contracts. (a) Section 3.16(a) of the Seller Disclosure Schedule 4.14(a) sets forth a true, complete and accurate list, as of the date of this Agreement, of all list of the following Contracts as amended to date which the Company or any of its Subsidiaries are currently in effect party or by which any of them or their or Seller’s material assets are bound (collectively, the “Company Material Contracts”):
(i) all Contracts that require annual payments or expenses incurred by, or annual payments or income to, any Contract not made in the Ordinary Course of business which is material to the Company Group or any of $200,000 its Subsidiaries, taken as a whole, and is to be performed in whole or more (other than standard purchase and sale orders entered into in material part on or after the ordinary course date of business consistent with past practices)this Agreement;
(ii) all salesany partnership, advertising, agency, sales promotion, market research, marketing joint venture or similar Contracts;
(iii) each Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the Company or any Subsidiary of its Subsidiaries is a party, including those that involve data-sharing or marketing;
(iii) any option, franchise or similar agreement;
(iv) any agreement relating to the acquisition or disposition of any business (whether by merger, amalgamation, plan of arrangement, sale of stock, sale of assets or otherwise), material assets or properties or any capital stock or other equity interest of the Company or its Subsidiaries, in each case under which the Company or any of its Subsidiaries has any executory indemnification obligations;
(v) all Contracts relating to any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group Contract (other than acquisitions a Contract described in one of the other provisions of this Section 3.16(a) without giving effect to any dollar or dispositions other limitation contained therein) pursuant to which the Company or any of inventory its Subsidiaries, taken as a whole, is or could become obligated to pay or receive a total of more than $1 million in any calendar year or more than $5 million during the ordinary course life of business consistent with past practices and the Contract, in each case other than Contracts in those which the applicable acquisition may be terminated or disposition or transaction has been consummated and there are no material obligations of canceled by any party thereto ongoing)on ninety days’ or less notice without the payment of any material penalty or other payment obligation;
(vi) all IP Contractsexcept for the Organizational Documents of Seller, separately identifying all such IP Contracts under which any Contract that contains any restriction on the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom ability of the Company Group or any of its Subsidiaries to compete in any line of business or industry, with any Person or to provide services generally or in any market segment or any geographic areaarea before or after the Closing;
(vii) any Contract or arrangement under which the Company or any of its Subsidiaries has incurred or become liable for any Indebtedness that is currently outstanding and which has an aggregate principal amount in excess of $5 million;
(viii) all Contracts providing for guarantees, or where such any Contract was entered into for the primary purpose of providing indemnification, other than Standard Contractswith a Company Client;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate Contract involving Indebtedness of the Company Group is or any of its Subsidiaries under which the Company and its Subsidiaries are liable for a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employeeprincipal amount in excess of $2 million;
(x) all Contracts relating any Contract containing a standstill or similar agreement pursuant to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments or any of its Subsidiaries has agreed not to the lessor thereunder in excess acquire assets or securities of $200,000 per yearanother Person or any of its Affiliates;
(xi) all Contracts creating any financial derivatives master agreement or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 confirmation, currency or greaterinterest rates hedging agreements, or futures account opening agreements and/or brokerage statements, evidencing financial, currency or interest rate hedging or similar trading activities;
(xii) all Contracts relating to the voting any employment, consulting or control of the equity interests of professional services Contract that is not terminable at will or for convenience by the Company Group or the election of directors of on less than thirty days’ notice and obligating the Company Group (other than the organizational or constitutive documents any of the Company Group)its Subsidiaries to make payments or provide compensation in excess of $350,000 annually;
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such any material collective bargaining agreement, labor union contract;, or works council or trade union agreement; and
(xiv) any Contract (other than a Contract described in one of the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject other provisions of this Section 3.16(a) without giving effect to any dollar or other limitation contained therein) which, if terminated prior to its current expiration date, would reasonably be expected to be material to the Equity Incentive PlanBusiness; provided, all however, that Company Material Contracts under which shall not include any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works councilCompany Benefit Plans.
(b) Seller has delivered or made available to Buyer or its Representatives a complete and accurate copy of each Company Material Contract.
(c) Each Company Material Contract is (i) is a valid and binding agreementobligation of the Company and/or its Subsidiaries that are party thereto, as the case may be, and to the Knowledge of Seller, each other party thereto, (ii) is in full force and effect, (iii) and with respect to any Company Material Contract where a Government Entity is on arm’s length terms and a party thereto, each such Contract was entered into legally awarded in the ordinary course of business, compliance with Law and (iv) is enforceable by and against the Company Group and/or such of its Subsidiaries that are party thereto, as the case may be, and to the Knowledge of Seller is enforceable against each other party thereto in accordance with the express terms thereof, subject to the Bankruptcy and Equity Exception.
(d) There does not exist under any Company Material Contract any violation, breach or event of default, on the part of the Company or any of its Subsidiaries or, to the Knowledge of Seller, any other party thereto and, with respect to any Government Contract or Government Bid, the Company and its Subsidiaries (as applicable) have complied with all applicable Laws with respect to each such Government Contract and Government Bid (and, to the Company’s KnowledgeKnowledge of Seller, each counterparty that is party thereto, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither neither the Company Group nor, to the Company’s Knowledge, as of the date of this Agreement, any other party to a Material Contract, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred nor any of its rights Subsidiaries has been made aware of any violation or obligations under any Material Contract breach of such Laws, or granted any power of attorney active investigation into the Seller’s compliance with respect thereto.
(csuch Laws) The Company Group is in compliance in all material respects and have not received a substantially adverse or negative past performance evaluation or rating that would reasonably be expected to adversely affect the future award of such a Contract to the Company or any of its Subsidiaries, except for such violations, breaches or events that would not reasonably be expected, individually or in the aggregate, to be material to the Business.
(e) Neither the Company nor any of its Subsidiaries, nor to the Knowledge of Seller, any of their respective Affiliates, managers, directors, officers, representatives, agents, consultants, or employees is (or at any time since September 30, 2012 has been) suspended or debarred from doing business with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments the U.S. Government or Contracts establishing declared non-responsible or evidencing ineligible to receive a Government Contract.
(f) Neither the Company nor any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause its Subsidiaries has received any written notice of termination or result in an event cancellation of default under any instruments or Contracts establishing or evidencing any IndebtednessCompany Material Contract.
Appears in 1 contract
Sources: Stock Purchase Agreement (Korn Ferry International)
Contracts. (a) Schedule 4.14(aSection 3.15 of the Company Disclosure Letter lists each of the following written contracts and agreements (other than any lease of Company Leased Real Property and contracts and agreements relating to Intellectual Property) sets forth to which the Company or any of its Subsidiaries is a true, complete and accurate list, party that is in effect as of the date of this AgreementAgreement (each such Contract or arrangement, of all of together with any such contracts or arrangements entered into after the following Contracts as amended to date which are currently in effect (collectivelyhereof, collectively being “Material Contracts”):
(i) all Contracts that require annual payments or expenses incurred by, or annual payments or income to, the Company Group of $200,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practices);
(ii) all sales, advertising, agency, sales promotion, market research, marketing or similar Contracts;
(iii) each Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all Contracts creating a joint venture, partnership or strategic alliancealliance contract or investment agreement, limited liability company in each case related to the formation, creation, operation, management or control of any partnership arrangement to or joint venture in which the Company or any Subsidiary of its Subsidiaries owns any partial interest and that is a party;
(v) all Contracts relating material to any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industryand its Subsidiaries, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnificationtaken as a whole, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining revenue sharing agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of business;
(ii) any settlement, and (iv) enforceable by and against conciliation or similar contract which would require the Company Group and, or any of its Subsidiaries to pay consideration of more than $5,000,000 (after taking into consideration any insurance proceeds available to the Company’s KnowledgeCompany or any of its Subsidiary, each counterparty that is party thereto, subjectas applicable, in the respect thereof) or to satisfy any material non-monetary obligations, in each case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of after the date of this Agreement;
(iii) any contract that contains any covenant limiting, to a degree that is material to the Company or any of its Subsidiaries, the ability of the Company or any of its Subsidiaries, as applicable, to engage in any line of business or compete with any Person, in each case in any geographic area (excluding any contracts entered into with distributors or suppliers in the ordinary course of business);
(iv) (A) for the acquisition, directly or indirectly (by merger or otherwise) of a material portion of the assets (other than goods, products or services in the ordinary course) or capital stock or other equity interests of any Person for aggregate consideration in excess of $5,000,000 and that has not closed prior to the date hereof or pursuant to which the Company or any of its Subsidiaries has continuing indemnification (other than indemnification obligations with respect to current or former directors and officers), “earn-out” or other similar contingent payment obligations that are reasonably expected to exceed $5,000,000 in the aggregate after the date hereof or (B) gives any Person the right to acquire any assets of the Company or any of its Subsidiaries (excluding ordinary course commitments to purchase goods, products or services) after the date hereof with a total consideration of more than $5,000,000; and
(v) all contracts evidencing any Affiliate Arrangements.
(b) (i) each Contract to which the Company or any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries or any of their respective properties or assets is bound (other than the Company Plans) is valid, binding and enforceable on the Company and any of its Subsidiaries to the extent such Person is a party thereto, as applicable, and to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to be valid, binding or in full force and effect, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect, (ii) the Company and each of its Subsidiaries, and, to the Knowledge of the Company, any other party to a Material Contractthereto, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.
(c) The Company Group is in compliance in all material respects with all covenantsContracts and has performed all obligations required to be performed by it under each Contract referred to above, including all financial covenantsexcept where such noncompliance, individually or in all notesthe aggregate, indentureshas not had and would not reasonably be expected to have a Material Adverse Effect, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing (iii) to the Knowledge of the transactions contemplated by this Agreement shall not cause Company, neither the Company nor any of its Subsidiaries has received notice of the existence of any event or result in an event condition which constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any instruments such Contract, except where such default, individually or Contracts establishing in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect, and (iv) to the Knowledge of the Company, there are no events or evidencing conditions which constitute, or, after notice or lapse of time or both, will constitute a default on the part of any Indebtednesscounterparty under such Contract, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Contracts. (a) Schedule 4.14(a) sets forth a true, complete and accurate list, Except as described in Section 5.12 of the date of this Agreement, of all of the following Contracts as amended to date which are currently in effect (collectively, “Material Contracts”):
(i) all Contracts that require annual payments or expenses incurred by, or annual payments or income toSeller Disclosure Schedule, the Company Group is not a party to or bound by any:
(1) employment agreement or employment contract that has, or could reasonably be expected to have, an aggregate future liability in excess of $200,000 100,000;
(2) collective bargaining agreement or more other contract with any labor union covering Employees;
(3) covenant not to compete;
(4) agreement or contract with any officer or director of the Company or any other Employee or Former Employee (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practicesemployment agreements covered by clause (1) above);
(ii5) all sales, advertising, agency, sales promotion, market research, marketing lease or similar Contractsagreement under which the Company is a lessor or sublessor of, or makes available for use by any third party, any Owned Property or Leased Property;
(iiia) each Contract with any current employee continuing contract for the future purchase of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000materials, and which is not terminable for any reason supplies or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 equipment (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing purchase contracts and orders for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the Company or any Subsidiary is a party;
(v) all Contracts relating to any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and practice), (b) management, service, consulting or other than Contracts similar type of contract, or (c) advertising agreement or contract, in any such case which has, or could reasonably be expected to have, an aggregate future liability in excess of $100,000;
(7) material license or other agreement relating in whole or in part to patents, trademarks, trade names, service marks or copyrights (including any license or other agreement under which the applicable acquisition Company has the right to use any of the same owned or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoingheld by a third party);
(vi) all IP Contracts, separately identifying all such IP Contracts 8) agreement or contract under which the Company is obligated to has borrowed or loaned any money or issued any note, bond, indenture or other evidence of indebtedness or directly or indirectly guaranteed (including without limitation through so-called take-or-pay royalties thereunder or keep well agreements) indebtedness, liabilities or obligations of others (other than endorsements for the purpose of collection in the ordinary course of business), or any other note, bond, indenture or other evidence of indebtedness, except as set forth in Sections 5.7 and all such IP Contracts under which 5.21 of the Company is entitled to receive royalties thereunderSeller Disclosure Schedule;
(vii9) all Contracts limiting the freedom agreement or contract under which any other Person has directly or indirectly guaranteed indebtedness, liabilities or obligations of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) endorsements for the purpose of collection in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control ordinary course of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Groupbusiness);
(xiii10) all Contracts not cancellable by the mortgage, pledge, security agreement, deed of trust or other document granting a Lien (including without limitation Liens upon any Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) Property or any properties acquired under conditional sales, capital leases or other title retention or security devices other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation original purchase price conditional sales contracts or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was equipment leases entered into in the ordinary course of business); or
(11) other agreement, contract, lease, license, commitment or instrument (a) to which the Company is a party, (b) by or to which it, its assets or its business is bound or subject, and (ivc) which has an aggregate future liability in excess of $100,000. Each agreement, contract, lease, license, commitment or instrument of the Company described in Section 5.12 of the Seller Disclosure Schedule (collectively, the "Contracts") is valid, binding and in full force and effect and is enforceable by and against the Company Group andin accordance with its terms, subject to the Company’s Knowledgeapplicable bankruptcy, each counterparty that is party theretoreorganization, subjectfraudulent transfer, moratorium, insolvency and other similar laws affecting creditors' rights generally from time to time in the case effect and to general principles of this clause equity (ivwhether considered in a proceeding in equity or at law), to the Enforceability Exceptions. Neither Each of Seller and the Company Group nor, has performed all material obligations required to be performed by them to date under the Company’s Knowledge, as of the date of this Agreement, any other party to a Material Contract, is in material breach or default Contracts and they are not (whether with or without the passage lapse of time or the giving of notice notice, or both) under the terms of in breach or default in any such Material Contract. The Company Group has not assignedmaterial respect thereunder and, delegated or otherwise transferred to Seller's knowledge, no other party to any of its rights the Contracts is (with or obligations under without the lapse of time or the giving of notice, or both) in breach or default in any Material Contract or granted any power of attorney with material respect theretothereunder.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule 4.14(a) sets forth a true, complete and accurate listforth, as of the date hereof, a true and complete list of this Agreementeach Contract to which the Company or any Company Subsidiary is a party or which binds or affects their respective properties or assets, of all and which falls within any of the following Contracts as amended to date which are currently in effect (collectively, “Material Contracts”):categories:
(i) all Contracts any Contract to which a Person other than the Company or any Company Subsidiary is a party with respect to a joint venture, partnership, strategic alliance, limited liability company or other similar Contract, related to the formation, creation, operation, management or control of any partnership, joint venture, strategic alliance or limited liability company;
(ii) any Contract that require annual payments involves future expenditures, receipts or expenses incurred byother liability by the Company or any Company Subsidiary of more than $1,000,000 in any twelve (12)-month period that cannot be terminated on thirty (30) days’ or less notice without material payment or penalty;
(iii) any Contract that grants any right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any Company Subsidiary to own, operate, sell, transfer, pledge or annual payments otherwise dispose of any material assets or income tobusinesses;
(iv) any Contract that limits the ability of the Company or any Company Subsidiary or any of their affiliates (including, following the consummation of the Merger, the Company Group Surviving Corporation and its Subsidiaries and affiliates) to provide services in any line of business or compete with any Person or purchase, sell, supply or distribute any product or service, in each case, in any geographic area or market segment or to engage in any type of business (including any license, collaboration, agency or distribution agreements);
(v) any Contract relating to the acquisition or divestiture of any Person or business (A) entered into since January 1, 2014 with a purchase price in excess of $200,000 500,000 or more (B) that contains “earn-out” provisions or other contingent payment obligations that could reasonably be expected to result in future payments by the Company or a Company Subsidiary in excess of $500,000 (including indemnification obligations);
(vi) any Contract or series of related Contracts relating to indebtedness for borrowed money or any financial guaranty (including any guaranty by the Company or any Company Subsidiary of any obligations of any third party), in each case (A) pertaining to indebtedness in excess of $500,000 or (B) that becomes due and payable as a result of the Merger;
(vii) any Contract pursuant to which the Company or any Company Subsidiary licenses (in or out) Intellectual Property that is material to the conduct of the Company’s and the Company Subsidiaries’ business as currently conducted, except (A) Contracts for off-the-shelf, shrink-wrap, click-through, pre-installed software or other commercially available software, hardware or databases licensed to the Company or any Company Subsidiary, in each case with a value less than $100,000 and (B) standard purchase and sale orders entered into form licenses granted to customers by the Company or its Subsidiaries in the ordinary course of business consistent with past practices)practice;
(iiviii) all salesany Contract that by its terms limits the payment of dividends or other distributions in respect of the Company Securities or otherwise, advertising, agency, sales promotion, market research, marketing prohibits the pledging of the Company Securities or similar Contractsprohibits the issuance of guarantees by the Company or any Company Subsidiary;
(iiiix) each any Contract with any current employee affiliate (other than the Company or any Company Subsidiary), director, manager or officer of the Company Group or any Company Subsidiary or with any “associate” or any member of the “immediate family” (Aas such terms are defined in Rules 12b-2 and 16a-1 of the Exchange Act) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penaltysuch director, severance manager or officer;
(x) any stockholders, investors rights, registration rights or similar agreement or arrangement;
(xi) any Contract that relates to any swap, forward, futures, hedge or other obligation; derivative transaction;
(Bxii) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 any Contract with the ten (other than COBRA obligations or similar requirements under applicable local Law); or (C10) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control largest clients of the Company;
(ivxiii) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the Company or any Subsidiary is a party;
(v) all Contracts Contract relating to any acquisitions third party agency, dealer, sales representative, resellers, affiliate programs, marketing or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts similar arrangements providing for guaranteescommission or other payments (but excluding product or pass-through costs) (A) during the fiscal year ended December 31, or where such Contract was entered into for the primary purpose 2015 of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xiiB) all Contracts relating to through May 31, 2016 in the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess fiscal year ending December 31, 2016 of $200,000 per the terms of such contract150,000;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject any Contract required to the Equity Incentive Plan, all Contracts under which any be disclosed pursuant to Item 404 of Regulation S-K of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary AgreementExchange Act; and
(xv) all collective bargaining agreements or any other agreement with a labor union, labor organization or works council“material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated under the Securities Act).
(b) Each Contract of the type described in Section 3.13(a), and each Contract set forth or required to be set forth in Section 3.13(a) of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract.” True, correct and complete copies of each Company Material Contract in effect as of the date hereof has been made available to the Purchaser (including pursuant to agreed-upon procedures to protect competitively sensitive information) or publicly filed with the SEC.
(c) Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect: (i) each Company Material Contract is a legally valid and binding and in full force and effect and enforceable obligation of the Company or the Company Subsidiary party thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency or similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity; (ii) the Company or the Company Subsidiary party thereto has performed all obligations required to be performed by it under the Company Material Contracts, and it is not (with or without notice or lapse of time, or both) in breach or default thereunder and, to the Knowledge of the Company, no other party to any Company Material Contract is (i) a valid and binding agreementwith or without notice or lapse of time, (iior both) in full force and effectbreach or default thereunder, (iii) is on arm’s length terms and was entered into in since January 1, 2015, neither the ordinary course Company nor any Company Subsidiary has received written notice of businessany actual, alleged, possible or potential violation of, or failure to comply with, any term or requirement of any Company Material Contract, and (iv) enforceable by and against neither the Company Group and, to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case nor any of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as Subsidiaries has received any written notice of the date intention of this Agreement, any other party to a cancel, terminate, change the scope of rights under or fail to renew any Company Material Contract, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Sources: Merger Agreement (Gannett Co., Inc.)
Contracts. (ai) Schedule 4.14(a3.2(l)(i) sets forth of the Parent Disclosure Letter contains a truelist of the following Contracts to which the Parent or any Subsidiary of the Parent is a party or by which their respective assets are subject to, complete and accurate listin each case, as of the date of this Agreement, of all of the following Contracts as amended to date which are currently in effect (collectively, “Material Contracts”):hereof:
(iA) all Contracts that require any lease, sublease, license or occupancy agreement of real property providing for annual payments or expenses incurred by, or annual payments or income to, the Company Group rentals of $200,000 1,500,000 or more (the “Material Parent Leases”);
(B) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture, which is not a wholly-owned Subsidiary of the Parent;
(C) any Contract relating to indebtedness for borrowed money (including guarantees) or pursuant to which any property or asset of the Parent or any Subsidiary of the Parent is mortgaged, pledged or otherwise subject to an Encumbrance, in each case in excess of $1,500,000, other than standard (x) accounts receivables and payables and (y) loans to direct or indirect wholly-owned Subsidiaries of the Parent;
(D) any Contract with current or ongoing obligations (as to the Parent) currently required to be filed as an exhibit to the Annual Report of the Parent on Form 10−K pursuant to Item 601(b)(10) of Regulation S−K under the Securities Act;
(E) any Contract that purports to limit in any material respect the right of the Parent or its Subsidiaries (1) to engage in any line of business, or (2) to compete with any Person or operate in any location;
(F) any Contract providing for the sale or exchange of, or option, right of first refusal or offer, or similar right, to sell or exchange, any of the Parent Properties, or for the purchase and sale orders or exchange of, or option, right of first refusal or offer, or similar right to purchase or exchange, any real estate entered into in the past two (2) years or in respect of which the applicable transaction has not yet been consummated;
(G) any Contract entered into in the past two (2) years in respect of which the applicable transaction has not yet been consummated for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets (other than Contracts referenced in clause (F) of this Section 3.2(l)(i)) or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,500,000, in each case other than in the ordinary course of business and in a manner consistent with past practices)practice;
(iiH) all salesany Contract pursuant to which the Parent or any Subsidiary of the Parent manages any real property or pursuant to which any other Person manages any real property owned by the Parent or any Subsidiary of the Parent pursuant to an agreement with the Parent or any Subsidiary of the Parent, advertisingon the one hand, agencyand such other Person, sales promotion, market research, marketing or similar Contractson the other hand;
(iiiI) each other than Contracts for ordinary repair and maintenance, any Contract with relating to the development or construction of, or additions or expansions to, the Parent Properties, under which the Parent or any current employee Subsidiary of the Company Group (A) which has continuing obligations for payment of Parent has, or expects to incur, an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee obligation in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon 1,500,000 in the consummation aggregate that has not been satisfied as of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Companydate hereof;
(ivJ) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to any Contract under which the Company Parent or any Subsidiary is of the Parent has continuing indemnification obligations relating to the settlement or proposed settlement of any Legal Action, which involves the issuance of equity securities or the payment of an amount, in any such case, having a partyvalue of more than $1,500,000 in the aggregate;
(vK) all Contracts relating any Contract that provides for any unpaid settlement or proposed settlement of any Legal Action in which the amount to any acquisitions or dispositions of assets of value be paid in settlement is in excess of $100,000 by 1,500,000;
(L) any Contract that provides for a guarantee in an amount in excess of $1,500,000 of the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which Person that is not the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom Parent or any Subsidiary of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a partyParent, other than any Contract providing for indemnification of Persons pursuant to Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of business; and
(M) any Contract (other than Contracts referenced in clauses (A) through (L) of this Section 3.2(l)(i)) that, by its terms, calls for payments by or Liability of the Parent or any Subsidiary of the Parent in excess of $1,500,000 other than any Contract under this clause (M) that, by its terms, is terminable within six (6) months of this Agreement (without termination fee or penalty). The Contracts described in clauses (A) through (M), including those required to be identified on Schedule 3.2(l)(i) of the Parent Disclosure Letter and the Parent Management Agreement Documents, in each case together with all exhibits and schedules thereto, are referred to as the “Parent Material Contracts.”
(ivii) enforceable by Except for such breaches and against defaults as would not, individually or in the Company Group aggregate, have a Parent Material Adverse Effect, (A) neither the Parent nor any Subsidiary of the Parent is and, to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as Knowledge of the date of this AgreementParent, no other party is in breach or violation of, or default under, any other party to a Parent Material Contract, is in material breach and (B) none of the Parent or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under Subsidiaries has received any Material Contract or granted any power of attorney with respect thereto.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event written claim of default under any instruments such Parent Material Contract. To the Knowledge of the Parent, each Parent Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect. The Parent has made available to the Company true and complete copies of all Parent Material Contracts, including any amendments or Contracts establishing or evidencing any Indebtednesssupplements thereto.
Appears in 1 contract
Sources: Merger Agreement (American Realty Capital - Retail Centers of America, Inc.)
Contracts. Section 4.1(k) of the Disclosure Schedule lists the following contracts and other agreements, other than those of a type disclosed in another Section to the Disclosure Schedule, to which Old BCS is a party:
(ai) Schedule 4.14(aeach sales agency, dealer, representative, distributorship or brokerage agreement or franchise;
(ii) sets forth a trueeach contract, complete agreement or commitment in respect of the sale of products or the performance of services, or for the purchase of inventories, equipment, raw materials, supplies, services or utilities which (i) involves payments or receipts by Old BCS of $10,000 or more and accurate listis not terminable by Old BCS at any time upon notice of 90 days or less, as of or (ii) is not to be fully performed within one year from the date of this Agreement, of all of the following Contracts as amended to date which are currently in effect (collectively, “Material Contracts”):
(i) all Contracts that require annual payments or expenses incurred by, or annual payments or income to, the Company Group of $200,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practices);
(ii) all sales, advertising, agency, sales promotion, market research, marketing or similar Contracts;
(iii) each Contract with any current employee agreement for the lease of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for personal property to or from any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) person providing for severance or post-termination lease payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company25,000 per annum;
(iv) all Contracts creating a each partnership, joint venture, strategic alliance, limited liability company joint operating or partnership arrangement to which the Company or any Subsidiary is a partysimilar agreement;
(v) all Contracts any agreement relating to indebtedness for borrowed money, or any acquisitions or dispositions of assets of value capitalized lease obligation, in excess of $100,000 by the Company Group (other than acquisitions 25,000 or dispositions under which there is a Security Interest on any of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition Old BCS’s assets, tangible or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing)intangible;
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunderany agreement concerning confidentiality or noncompetition;
(vii) all Contracts limiting the freedom any agreement with any of the Company Group to compete in Members or ▇▇▇▇▇▇ or an Affiliate of any line of business or industry, with any Person or in any geographic areathem;
(viii) all Contracts providing for guaranteesany deferred compensation, severance or where such Contract was entered into other plan or arrangement for the primary purpose benefit of providing indemnificationits current or former directors, other than Standard Contractsofficers or employees;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employeecollective bargaining agreement;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts any agreement under which any of the benefitsOld BCS has advanced or loaned money to members, compensation managers, officers or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into in employees outside the ordinary course of business; and
(xi) any agreement restricting the right of Old BCS to do business anywhere in the world. Old BCS has delivered to Stoneridge a true and correct copy of each written agreement listed in Section 4.1(k) of the Disclosure Schedule (other than the leases and subleases with Old BCS) and a written summary setting forth the terms and conditions of each oral agreement referred to therein. With respect to each such agreement: (i) to the Knowledge of the Members, ▇▇▇▇▇▇ and Old BCS, no party thereto is in material breach or default, and no event has occurred which with notice or lapse of time would constitute a material breach or default, or permit termination, material modification or acceleration, under the agreement; (ii) no party has repudiated any material provision of the agreement; (iii) to the Knowledge of the Members, ▇▇▇▇▇▇ and Old BCS, the agreement is legally valid and binding against the parties thereto, and (iv) enforceable by and against the Company Group and, to the Company’s KnowledgeKnowledge of the Members, each counterparty that is party thereto, subject, in the case of this clause (iv), ▇▇▇▇▇▇ and Old BCS all certificates provided by Old BCS pursuant to the Enforceability Exceptions. Neither the Company Group nor, agreement to the Company’s Knowledge, as of the date of this Agreement, any other party or parties to a Material Contract, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.
(c) The Company Group is in compliance agreement were true and correct in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtednesswhen provided.
Appears in 1 contract
Sources: Asset Purchase and Contribution Agreement (Stoneridge Inc)
Contracts. (a) Schedule 4.14(a) sets forth Each of the following Contracts to which any TNK Company is a true, complete and accurate list, party that are in effect as of the date of this Agreement, of all of the following Contracts as amended to date which are currently in effect (hereof shall be deemed a “TNK Material Contract” and collectively, the “TNK Material Contracts”):
(i) all each “material contract” (as such term is defined in Item 10.C and in instructions as to Exhibits of Form 20-F) to which any TNK Company is a party to or bound;
(ii) each Contract not contemplated by this Agreement that restricts the business activity of TNK or any of its Affiliates or limits the freedom of TNK or any of its Affiliates to engage in any line of business or to compete with any Person or in any geographical area in a manner that is material to TNK and its Subsidiaries, taken as a whole;
(iii) each Contract that creates a partnership, joint venture or any strategic alliance with respect to any TNK Company, other than the TNK Companies Organizational Documents;
(iv) each employment, consulting, services or similar Contract with any employee or independent contractor of a TNK Company involving more than $150,000 of base annual compensation;
(v) each indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other evidence of Indebtedness or Contract providing for Indebtedness in excess of $2,000,000;
(vi) each Contract that relates to the acquisition or disposition, directly or indirectly, of any material business (whether by merger, sale of shares, sale of assets or otherwise) or material asset, including any vessel, and/or involving consideration with a fair market value in excess of $5,000,000, other than this Agreement;
(vii) any Contract related to the acquisition or disposition, directly or indirectly (by merger, sale of shares, sale of assets or otherwise), by any TNK Company prior to the date of this Agreement that includes provisions that are in effect in respect of “earn-outs” or deferred or contingent consideration;
(viii) each ship-sales, memorandum of agreement, bareboat charter or other vessel acquisition Contract for Newbuildings and secondhand vessels contracted for by any TNK Company and other Contracts that require with respect to Newbuildings and the financing thereof, including performance guarantees, counter guarantees, refund guarantees, material supervision agreements and material plan verification services agreements;
(ix) each operating agreement, management agreement, crewing agreement or financial lease (including sale/leaseback or similar arrangements) with respect to any TNK Vessel involving annual payments or expenses incurred by, or annual payments or income to, the Company Group in excess of $200,000 or more 1,000,000;
(x) any Contract with a Third Party for the charter of any TNK Vessel;
(xi) each Contract that provides for indemnification by any TNK Company to any Person other than standard purchase and sale orders a Contract entered into in the ordinary course of business consistent with past practices);
(ii) all sales, advertising, agency, sales promotion, market research, marketing or similar Contracts;
(iii) each Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which that is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the Company or any Subsidiary is a party;
(v) all Contracts relating material to any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greaterTNK Company;
(xii) all Contracts relating each Contract to the voting which any TNK Company is a party or control of the equity interests of the otherwise bound that contains a so-called “most favored nations” provision or similar provisions requiring any TNK Company Group or the election of directors of the Company Group (its Affiliates to offer to a Person any terms or conditions that are at least as favorable as those offered to one or more other than the organizational or constitutive documents of the Company Group);Persons; and
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect each Contract involving a standstill or similar obligation of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works councilTNK Company.
(b) Each Except for breaches, violations or defaults which would not have a TNK Material Contract is Adverse Effect, (i) a valid each of the TNK Material Contracts is valid, binding, enforceable and binding agreement, (ii) in full force and effecteffect with respect to the TNK Companies, (iii) is on arm’s length terms and was entered into to the Knowledge of TNK, the other parties thereto, except to the extent that the enforceability thereof may be limited by the Equitable Exceptions and except for any TNK Material Contracts that have expired or been terminated after the date hereof in the ordinary course of businessaccordance with its terms, and (ivii) enforceable by and against none of the Company Group andTNK Companies, nor to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case Knowledge of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of the date of this AgreementTNK, any other party to a TNK Material Contract, is in material has violated any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a breach or default (whether with under, or without the passage give rise to any right of time cancellation or the giving termination of notice or both) under the terms of any consent under, such TNK Material Contract. The Company Group , and none of the TNK Companies has not assignedreceived written notice that it has breached, delegated violated or otherwise transferred any of its rights or obligations defaulted under any TNK Material Contract or granted any power of attorney with respect theretoContract.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Contracts. (a) Schedule 4.14(a) sets forth a true, complete and accurate list, as In respect of the date of this Agreement, of all Material Contracts:-
5.2.1 in the reasonable opinion of the following Vendor and the Guarantor, the Material Contracts as amended to date which are currently constitute all the material contracts in effect (collectively, “respect of the businesses of the Group Companies.
5.2.2 other than the Material Contracts”):, none of the Group Companies is a party to or bound by:-
(i) all Contracts that require annual payments any material agreement or expenses incurred bycommitment relating to the borrowing of money;
(ii) any material agreement or commitment relating to capital expenditures involving an amount of US$500,000 or more;
(iii) any bonds, debentures, mortgages, notes or other similar indebtedness or liabilities whatsoever, or annual payments any agreement to create or income issue any bonds, debentures, mortgages, notes or other similar indebtedness;
(iv) any loan or advance to, or investment in, any other person (except another member of the Company Group) or any agreement or commitment relating to the making of any such loan, advance or investment;
(v) any guarantee or other contingent liability (excluding any product liability in relation to the Group Companies' products) in respect of $200,000 any material (in the context of the Group Companies taken as a whole) indebtedness or more obligation of any other person (except another member of the Group), other than standard purchase and sale orders entered into the endorsement of negotiable instruments for collection in the ordinary course of business consistent with past practices);
(ii) all sales, advertising, agency, sales promotion, market research, marketing or similar Contracts;
(iii) each Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the Company or any Subsidiary is a party;
(v) all Contracts relating to any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing)business;
(vi) all IP Contracts, separately identifying all such IP Contracts under which any material agreement relating to the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereundersupply of materials or products involving an amount of US$500,000 or more;
(vii) all Contracts any management, consulting or any other similar agreement or commitment which is not terminable within six months or involves an amount of US$250,000 or more; or
(viii) any agreement or commitment limiting the freedom of any of the Company Group Companies to compete engage in any line of business or industry, to compete with any Person or in any geographic areaother person;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate 5.2.3 each of the Company Group Material Contracts is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) subsisting agreement and is in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of business, and (iv) enforceable by and against the Company Group effect without amendment thereto; and,
5.2.4 to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as best of the date Vendor's and the Guarantor's knowledge, after due enquiry, there exists no default or event of this Agreementdefault or event, any other party to a Material Contractoccurrence, is in material breach condition or default (whether act which, with or without the passage giving of notice, the lapse of time or the giving of notice or both) under the terms happening of any such Material Contract. The Company other event or condition, would become a default or event of default thereunder, and all the covenants to be performed by any party thereto, including the Group has not assignedCompanies, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.
(c) The Company Group is in compliance have been fully performed in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtednessrespects.
Appears in 1 contract
Contracts. (a) Section 2.14 of the Disclosure Schedule 4.14(alists the following agreements (written or oral) sets forth to which the Company is a true, complete and accurate list, party as of the date of this Agreement, of all of the following Contracts as amended to date which are currently in effect (collectively, “Material Contracts”)::
(i) all Contracts that require annual any agreement (or group of related agreements) for the lease of personal property from or to third parties providing for lease payments or expenses incurred by, or annual payments or income to, the Company Group in excess of $200,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practices)25,000 per annum;
(ii) all sales, advertising, agency, sales promotion, market research, marketing any agreement (or similar Contracts;group of related agreements) for the purchase of products or for the receipt of services which calls for performance over a period of more than one year and which involves more than the sum of $25,000.
(iii) each Contract any agreement concerning a partnership, joint venture or limited liability company;
(iv) any agreement (or group of related agreements) under which the Company has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness for borrowed money or any capitalized lease obligation, or under which the Company has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement with any current employee Stockholder or their Affiliates or ▇▇▇▇▇▇;
(vi) any agreement for the acquisition of securities or substantially all of the assets of any other person (including by merger or consolidation);
(vii) any agreement concerning noncompetition or nonsolicitation by the Company, or which otherwise restricts the ability of the Company Group (A) to compete, to which has continuing obligations for payment of an annual compensation of at least $200,000the Company is a party, and which is not terminable for any reason noncompetition or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon nonsolicitation agreement entered into by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control Company and staff employees of the Company;
(ivviii) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement any employment agreement to which the Company or any Subsidiary is a party;
(v) all Contracts relating to any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than “at-will” agreements with its employees that do not provide for any Contracts relating severance, termination, change-of-control or similar benefits;
(ix) any agreement under which the Company has advanced or loaned any amount currently outstanding to such Affiliate’s status as a Company Securityholder or employeeany of its directors, officers and employees outside the Ordinary Course of Business;
(x) all Contracts relating to property any agreement involving any current or assets (whether real former officer, director or personal, tangible or intangible) in which stockholder of the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per yearor ▇▇▇▇▇▇ or an Affiliate thereof;
(xi) all Contracts creating any settlement, conciliation or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) similar agreement, the performance of which will involve payment after the Closing Date of consideration in the aggregate that are valued at excess of $250,000 or greater;25,000; and
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts any agreement under which any the consequences of the benefits, compensation a default or payments (or the vesting thereof) will termination would reasonably be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with expected to have a labor union, labor organization or works councilCompany Material Adverse Effect.
(b) Each Material Contract is The Company has made available to the Buyer a complete and accurate copy of each written agreement listed in Section 2.13 or Section 2.14 of the Disclosure Schedule. With respect to each agreement so listed, except as set forth in Section 2.14 of the Disclosure Schedule: (i) a valid the agreement is legal, valid, binding and binding agreement, (ii) enforceable and in full force and effect; (ii) the agreement will continue to be legal, valid, binding and enforceable and in full force and effect immediately following the Closing, in accordance with the terms thereof as in effect immediately prior to the Closing; (iii) neither the Company nor, to the knowledge of the Company, any other party, is on arm’s length terms in breach or violation of, or default under, any such agreement, and was entered into in no event has occurred, is pending (including the ordinary course transactions contemplated hereby) or, to the knowledge of businessthe Company, is threatened, which, after the giving of notice, with lapse of time, or otherwise, would constitute a breach or default by the Company or, to the knowledge of the Company, any other party under such agreement, and (iv) enforceable by and against the Company Group and, to the Company’s Knowledgeknowledge, each counterparty that is no party thereto, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as has repudiated any provision of the date of this Agreement, any other party to a Material Contract, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect theretoagreement.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Sources: Merger Agreement (On Assignment Inc)
Contracts. (a) Schedule 4.14(a) sets forth a trueExcept for this Agreement, complete and accurate listagreements filed as exhibits to the Company SEC Documents or Company Benefit Plans, as of the date of this Agreement, neither the Company nor any of all of the following Contracts as amended its Subsidiaries is a party to date which are currently in effect (collectively, “Material Contracts”):or expressly bound by any Contract that:
(i) all Contracts that require annual payments or expenses incurred by, or annual payments or income to, is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated under the Company Group of $200,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practicesSecurities Act);
(ii) all salesis a joint venture or partnership Contract that is material to the business of the Company and its Subsidiaries, advertising, agency, sales promotion, market research, marketing or similar Contractstaken as a whole;
(iii) each Contract with any current employee of the Company Group (A) which has continuing obligations for payment of is an annual compensation of at least $200,000indenture, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penaltycredit agreement, severance loan agreement, security agreement, guarantee, note, mortgage or other obligation; (B) Contract providing for severance or post-termination payments securing indebtedness for borrowed money or benefits to such employee deferred payment (in each case, whether incurred, assumed, guaranteed or secured by any asset) in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company25,000,000;
(iv) all Contracts creating is a joint venturesettlement, strategic allianceconciliation or similar agreement (A) with any Governmental Entity, limited liability company or partnership arrangement to (B) which would require the Company or any Subsidiary is a partyof its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement;
(v) all Contracts relating contains any covenant limiting, to any acquisitions or dispositions of assets of value in excess of $100,000 by a degree that is material to the Company Group (other than acquisitions or dispositions of inventory in and its Subsidiaries, taken as a whole, the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom ability of the Company Group or any of its Subsidiaries to compete engage in any line of business or industry, compete with any Person or in any geographic area;
(vi) (A) relates to the acquisition, directly or indirectly (by merger or otherwise), of a material portion of the assets (other than goods, products or services in the ordinary course) or capital stock or other equity interests of any Person for aggregate consideration in excess of $10,000,000 or pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or other similar contingent payment obligations after the date hereof in excess of $1,000,000; or (B) gives any Person the right to acquire any assets of the Company or its Subsidiaries (excluding ordinary course commitments to purchase goods, products or services) after the date hereof with a total consideration of more than $5,000,000;
(vii) indemnifies or holds harmless any director or executive officer of the Company or its Subsidiaries (other than pursuant to the certificate of incorporation or bylaws or equivalent governing documents of the Company or its Subsidiaries);
(viii) all Contracts providing for guarantees, requires any capital commitment or where such Contract was entered into for capital expenditure (or series of capital expenditures) by the primary purpose Company or any of providing indemnificationits Subsidiaries in an amount in excess of $10,000,000 individually, other than Standard Contracts;any purchase order or Contract for supply, inventory or trading stock acquired in the ordinary course of business; or
(ix) all Contracts with restricts payment of dividends or pertaining to the Company Group to which any Affiliate distributions in respect of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder capital stock or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election any of directors its Subsidiaries. Each Contract of the type described in this Section 4.17(a) is referred to herein as a “Company Group (other than the organizational or constitutive documents of the Material Contract”; provided, however, that Company Group);
(xiii) all Contracts Material Contract shall not cancellable by the include any Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Benefit Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each A true and complete copy of each Company Material Contract has been made available to Parent. Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract where such breach or default would have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. To the Knowledge of the Company, no other party to any Company Material Contract is (i) in breach of or default under the terms of any Company Material Contract where such breach or default would have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Except as would not have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract and Lease with respect to Leased Real Property is a valid and binding agreementobligation of the Company or the Subsidiary of the Company which is party thereto and, (ii) to the Knowledge of the Company, of each other party thereto, and is in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of business, and (iv) enforceable by and against the Company Group and, to the Company’s Knowledge, each counterparty except that is party thereto, subject, in the case of this clause (iv), such enforcement may be subject to the Enforceability Exceptions. Neither Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (A) neither the Company Group nornor any of its Subsidiaries has received written notice of termination, cancellation or the existence of any event or condition which constitutes, or after notice or lapse of time (or both), will constitute, to the Company’s Knowledge, as Knowledge of the date of this AgreementCompany, any other party to a Material Contract, is in material breach or default (whether with on the part of the Company or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations Subsidiaries under any a Company Material Contract or granted any power of attorney Lease with respect theretoto Leased Real Property, and (B) no party to any Company Material Contract has provided written notice (y) exercising or threatening exercise of any termination rights with respect thereto or (z) of any material dispute with respect to any Company Material Contract or Lease with respect to Leased Real Property.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Sources: Merger Agreement (Saks Inc)
Contracts. (a) Section 4.11 of the Company Disclosure Schedule 4.14(a) sets forth a true, complete and accurate list, as list of the date of this Agreement, of all each of the following Contracts as amended agreements to date which are currently in effect (collectivelythe Company, “Material Contracts”):any Company Subsidiary or any Nonprofit Organization is party or by which any of them is bound:
(i) all Contracts contract that require annual payments or expenses incurred by, or annual payments or income to, would be required to be filed by the Company Group as a material contract pursuant to Item 601(b)(10) of $200,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practices)Regulation S-K;
(ii) all salescontract containing covenants of the Company, advertisingany Company Subsidiary or Nonprofit Organization not to compete in any line of business, agencyindustry or geographical area or which affects the ability of an Affiliate of the Company, sales promotionany Company Subsidiary or any Nonprofit Organization from competing in any line of business, market research, marketing industry or similar Contractsgeographical area;
(iii) each Contract contract which does, or could reasonably be construed to, create a partnership or joint venture or similar arrangement with respect to any current employee material business of the Company, any Company Group Subsidiary or Nonprofit Organization;
(Aiv) which has continuing obligations for payment of an annual compensation of at least $200,000contract that, and which is not terminable for any reason individually or no reason upon reasonable notice without payment of any penaltyin the aggregate, severance could or other obligation; (B) providing for severance could reasonably be expected to prevent, materially delay or post-termination payments or benefits materially impede the Company’s ability to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of consummate the transactions contemplated by this Agreement;
(v) indenture, credit agreement, loan agreement, guarantee, note or other evidence of Indebtedness or agreement providing for Indebtedness in excess of the Material Amount;
(vi) contract (other than the Prior Merger Agreement and this Agreement) for the acquisition or sale of assets (whether by merger, consolidation, acquisition of stock or assets or otherwise) in excess of the Material Amount;
(vii) collective bargaining agreement, employment agreement, offer letter, or severance or termination or transition agreement, in each case providing for annual payments of more than the Material Amount;
(viii) agreement (or group of related agreements) for the lease of personal property providing for annual payments of more than the Material Amount;
(ix) contract (other than purchase orders) for the purchase or sale of materials, supplies, goods, equipment, products, merchandise or other assets, or for the furnishing or receipt of services, with any Ancillary Agreement or as a result of a change of control the top 20 vendors of the Company, the Company Subsidiaries and the Nonprofit Organizations, based on aggregate payments made by the Company, the Company Subsidiaries and the Nonprofit Organizations to such vendors, taken as a whole, during the fiscal year ending June 30, 2005;
(ivx) all Contracts creating contract that contains a joint ventureput, strategic alliancecall, limited liability company right of first refusal or partnership arrangement similar right pursuant to which the Company, any Company Subsidiary or any Nonprofit Organization could be required to purchase or sell, as applicable, any Equity Interests of any Person or assets that have a fair market value or purchase price of more than the Material Amount;
(xi) settlement or conciliation agreement or similar agreement (except for benefit plans and individual employee agreements) or order or consent of a Governmental Authority to which the Company or any Subsidiary of the Company Subsidiaries or Nonprofit Organizations is a party;
(v) all Contracts relating to any acquisitions or dispositions of assets of value in excess of $100,000 party involving future performance by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in any Company Subsidiary or Nonprofit Organization which the applicable acquisition or disposition or transaction has been consummated and there are no is material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greaterCompany;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group other contract (other than the organizational Prior Merger Agreement, this Agreement or constitutive documents purchase orders in the Ordinary Course of Business) pursuant to which the Company or any Company Subsidiary or Nonprofit Organization has incurred a Liability in excess of the Material Amount or providing for payments from the Company Group)or any Company Subsidiary or Nonprofit Organization in excess of the Material Amount or the consequences of a default or termination of which could have a Material Adverse Effect;
(xiii) all Contracts not cancellable contract by which the Company, any Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty Subsidiary or any Nonprofit Organization licenses to the Company Group in excess of $200,000 per the terms of such contractor from any Person any material Intellectual Property or that otherwise concerns material Intellectual Property or that otherwise concerns material Intellectual Property;
(xiv) other than agreement with any shareholder, former shareholder, affiliate, director or officer of the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive PlanCompany, all Contracts under which any Company Subsidiary or any Nonprofit Organization, or any relative of any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreementforegoing; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of business, and (iv) enforceable by and against the Company Group Real Property Leases; and, to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of the date of this Agreement, any other party to a Material Contract, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Westland Development Co Inc)
Contracts. (ai) Schedule 4.14(a) sets forth a trueExcept for this Agreement, complete and accurate list, as of the material contracts attached to the Company Reports filed prior to the date of this Agreement, of all the Company Benefit Plans and as set forth on Section 6.1(u)(i) of the following Contracts Company Disclosure Schedule, as amended of the date hereof, no Acquired Company is a party to date which are currently or bound by any “material contract” (as such term is defined in effect (collectively, “Material Contracts”):item 601(b)(10) of Regulation S-K of the SEC).
(iii) all Contracts that require annual payments Except as set forth on Section 6.1(u)(ii) of the Company Disclosure Schedule, no Acquired Company is a party to or expenses incurred bound by:
(A) any Contract: (1) relating to the employment of, or the performance of services by, any employee or annual payments or income to, the Company Group of $200,000 or more consultant (other than standard purchase and sale orders entered into offer letters with employees providing for “at will” employment terminable on 10 days’ notice or less in the form used by an Acquired Company in the ordinary course of business consistent with past practices);
; (ii2) all salespursuant to which any of the Acquired Companies is or may become obligated to make or provide any severance, advertisingtermination, agency, sales promotion, market research, marketing change in control or similar Contracts;
(iii) each Contract with payment or benefit to any current employee or former employee, independent contractor, consultant or director of or to any of the Acquired Companies (each, a “Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local LawAssociate”); or (C3) providing for a payment or benefit upon the consummation pursuant to which any of the transactions contemplated by this Agreement Acquired Companies is or may become obligated to make any Ancillary Agreement bonus or as a result of a change of control of the Company;
similar payment (ivother than payments constituting base salary) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the Company or any Subsidiary is a party;
(v) all Contracts relating to any acquisitions or dispositions of assets of value in excess of $100,000 by the to any Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing)Associate;
(viB) all IP Contractsany collective bargaining, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunderunion or works council agreements;
(viiC) all Contracts any Contract containing any covenant (1) limiting the freedom of the Company Group to compete in any respect the right of any Acquired Company (or, after the Effective Time, Parent or its Subsidiaries) to engage in any type or line of business or industry, compete with any Person in any type or line of business or to compete with any Person or the manner or locations in which any of them engage, (2) granting any exclusivity rights or “most favored nations” status that, following the Merger, would in any geographic areaway apply to Parent or any of its Subsidiaries, including the Acquired Companies, or (3) otherwise prohibiting or limiting the right of any Acquired Company to make, sell or distribute any products or services or use, transfer, license, distribute or enforce any material Intellectual Property owned by any Acquired Company;
(viiiD) all Contracts providing any defined benefit pension plan under which an Acquired Company has or may have any obligations or liability;
(E) any Contract relating to the acquisition, development, sale or disposition of any business unit or Intellectual Property of any Acquired Company;
(F) any Contract which contains a “clawback” or similar undertaking requiring the reimbursement or refund of any fees (whether performance based or otherwise) paid to the Acquired Companies;
(G) any Contract which is a mortgage, security agreement, capital lease or similar agreement, in each case, that creates or grants a Lien on any property or assets that are material to the Acquired Companies, taken as a whole;
(H) any partnership, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture;
(I) any Contract that contains a put, call or other right of acquisition or disposition pursuant to which any Acquired Company could be required to purchase or sell, as applicable, (1) any equity interests (including licensing or leasehold interests) of any Person or (2) assets, in the case of this clause “(2)” involving revenues or expenses of the Acquired Companies of more than $500,000;
(J) any Contract for guaranteesborrowed money (whether current, short-term or long-term and whether secured or unsecured, or where such Contract was entered into for any financial guarantee) incurred by the primary purpose Acquired Companies or pursuant to which the Acquired Companies has any obligations as guarantor, surety, co-signer, endorser or co-maker in respect of providing indemnificationany obligation of any Person, or any capital maintenance, keep well or similar agreements or arrangements, other than Standard Contracts;
(ix1) all Contracts with or pertaining to solely among the Company Group to which or any Affiliate of the Company Group is a party, other than any its wholly owned Subsidiaries and/or (2) Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder not involving amounts in excess of $200,000 per year250,000;
(xiK) all Contracts creating any Contract that restricts payment of dividends or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) any distributions in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control respect of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group)Acquired Companies;
(xiiiL) all Contracts not cancellable by any Contract pursuant to which the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation Acquired Companies have continuing material indemnification obligations or other contingent payments to any Person that would reasonably be expected to result in monetary penalty to the Company Group payments in excess of $200,000 per the terms of such contract;
500,000, except for (xiv1) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation vendor or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material content licensing Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of businessbusiness or (2) non-disclosure agreements;
(M) any Contract, except for this Agreement, relating to the acquisition or disposition of any business or securities by Acquired Companies (whether by merger, sale of shares, sale of assets or otherwise) or pursuant to which any material earn-out, deferred or contingent payment obligations remain outstanding (excluding any such Contract for which all such rights and obligations have been satisfied);
(N) any Contract entered into since January 1, 2015 involving any resolution or settlement of any actual or threatened Legal Proceedings (1) with a value of greater than $500,000 or (2) which imposes material continuing obligations on the Acquired Companies or that provides for any continuing injunctive or other non-monetary relief, in each case, other than confidentiality obligations;
(O) (1) any Contract pursuant to which any Acquired Company has been granted any option, license or similar right relating to the Intellectual Property of a third party, in each case that is material to the business or assets of the Acquired Companies, taken as a whole (but excluding any non-exclusive “click-through” or similar end-user license for commercially available software), and (2) any Contract pursuant to which any option, license or similar right relating to any Intellectual Property owned by any Acquired Company has been granted to a third party, in each case that is material to the business or assets of the Acquired Companies, taken as a whole (but excluding any non-exclusive licenses granted to customers in the ordinary course of business);
(P) any confidentiality agreements or standstill agreements with any third party (or any agent thereof) that contains any exclusivity or standstill provisions that are or will be binding on any Acquired Company or, after the Effective Time, Parent or any of its Subsidiaries (including the Acquired Companies);
(Q) any other Contract (or group of related Contracts), the performance of which requires aggregate payments to or from the Acquired Companies during fiscal year ended December 31, 2017 in excess of $500,000;
(R) any other Contract, if a breach of such Contract could, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect; or
(S) any Contract (1) with any Affiliate of the Company (other than its Subsidiaries and other than any Contract related to a Company Performance Award), (2) with a Governmental Entity (other than ordinary course Contracts with (x) U.S. Governmental Entities and (y) non-U.S. Governmental Entities as a customer), or (3) containing a standstill or similar agreement pursuant to which any Acquired Company has agreed not to acquire assets or securities of another Person (the Contracts described in Section 6.1(u)(i) and clauses (A) — (S) of this Section 6.1(u)(ii), together with all exhibits and schedules to such Contracts and the Specified Company Contracts, collectively the “Material Contracts”).
(iii) The Company has made available to Parent an accurate and complete copy of each Material Contract.
(iv) enforceable by No Acquired Company is in material breach of, or default under, the terms of any Company Contract. To the Knowledge of the Company, no other party to any Company Contract is in material breach of or default under the terms of such Company Contract. To the Knowledge of the Company, no event has occurred, and against no circumstance or condition exists, that (with or without notice or lapse of time) could reasonably be expected to: (A) result in a material violation or breach of any of the provisions of any Company Contract; (B) give any Person the right to declare a material default or exercise any remedy under any Company Contract; (C) give any Person the right to receive or require a rebate, chargeback, penalty or change in delivery schedule under any Company Contract; (D) give any Person the right to accelerate the maturity or performance of any Company Contract that constitutes a Material Contract; or (E) give any Person the right to cancel, terminate or modify any Company Contract that constitutes a Material Contract. Since January 1, 2017, none of the Acquired Companies has received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Material Contract.
(v) Each of the Company Group Contracts is a valid and binding obligation of the Acquired Company which is party thereto and, to the Knowledge of the Company’s Knowledge, of each counterparty that is other party thereto, subjectand is in full force and effect, in subject to the case Bankruptcy and Equity Exception.
(vi) Each of this clause (iv)the Specified Company Contracts is a valid and binding obligation of the Acquired Company which is party thereto and, to the Enforceability Exceptions. Neither Knowledge of the Company Group norCompany, of each other party thereto, and is in full force and effect, subject to the Company’s Knowledge, as of the date of this Agreement, any other party to a Material Contract, Bankruptcy and Equity Exception. No Acquired Company is in material breach of, or default (whether with under, the terms of any Specified Company Contract. To the Knowledge of the Company, no other party to any Specified Company Contract is in material breach of or without the passage of time or the giving of notice or both) default under the terms of any such Material Specified Company Contract. The Company Group To the Knowledge of the Company, no event has not assignedoccurred, delegated and no circumstance or otherwise transferred condition exists, that (with or without notice or lapse of time) could reasonably be expected to: (A) result in a material violation or breach of any of its rights the provisions of any Specified Company Contract; (B) give any Person the right to declare a material default or obligations exercise any remedy under any Material Contract Specified Company Contract; (C) give any Person the right to receive or granted require a rebate, chargeback, penalty or change in delivery schedule under any power Specified Company Contract; (D) give any Person the right to accelerate the maturity or performance of attorney with respect thereto.
any Specified Company Contract; or (cE) The give any Person the right to cancel, terminate or modify any Specified Company Group is in compliance in all material respects with all covenantsContract. Since January 1, including all financial covenants2017, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing none of the transactions contemplated by this Agreement shall not cause Acquired Companies has received any notice or result in an event of other communication regarding any actual or possible violation, termination, cancellation, nonrenewal, nonextension or breach of, or default under under, any instruments or Contracts establishing or evidencing any IndebtednessSpecified Company Contract.
Appears in 1 contract
Contracts. (a) Schedule 4.14(a3.17(a) sets forth a true, complete and accurate list, as of the date of this AgreementSeller Disclosure Letter contains a complete, current and correct list of all of the following types of Contracts as amended (including oral Contracts) to date which an Ameri Company is a party, by which any of its properties or assets are currently in effect (collectivelybound, “Material Contracts”):
or under which an Ameri Company otherwise has material obligations, with each such responsive Contract identified by each corresponding category (i) all Contracts that require annual payments – (ix) below: (i) any Contract with any Top Customer or expenses incurred by, or annual payments or income to, the Company Group of $200,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practices);
Top Supplier; (ii) all sales, advertising, agency, sales promotion, market research, marketing any Contract or similar Contracts;
group of related Contracts which involve expenditures or receipts by the Ameri Companies that require payments or yield receipts of more than $100,000 in any twelve (12) month period or more than $100,000 in the aggregate; (iii) each Contract with any current employee power of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligationattorney; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all Contracts creating a any partnership, joint venture, strategic alliance, limited liability company profit-sharing or partnership arrangement to which the Company or similar agreement entered into with any Subsidiary is a party;
Person; (v) all Contracts relating to any acquisitions merger, consolidation or dispositions other business combination with any other Person or the acquisition or disposition of any other entity or its business, its equity securities or its material assets or the sale of value an Ameri Company, its business, its equity securities or its material assets (other than in the Ordinary Course of Business); (vi) any loan agreement, agreement of indebtedness, credit, note, security agreement, guarantee, mortgage, indenture or other document relating to Indebtedness, borrowing of money or extension of credit by or to an Ameri Company in excess of $100,000; (vii) any material settlement agreement entered into within three (3) years prior to the date of this Agreement or under which an Ameri Company has outstanding obligations (other than customary obligations of confidentiality); (viii) any Contract granting, licensing, sublicensing or otherwise transferring any Intellectual Property of an Ameri Company other than licenses of an Ameri Company’s Intellectual Property included in such Ameri Company’s form customer agreements entered into in the Ordinary Course of Business; or (ix) any agreement entered into outside the Ordinary Course of Business and presently in effect, involving payment to or obligations of in excess of $100,000 or otherwise material to an Ameri Company, not otherwise described in this Section 3.17(a).
(b) Except as set forth on Schedule 3.17(b) of the Seller Disclosure Letter, no Ameri Company is a party to or bound by any Contract containing any covenant (i) limiting in any respect the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations right of any party thereto ongoing);
(vi) all IP ContractsAmeri Company or its Affiliates to engage in any line of business, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom make use of the Company Group to any of its Intellectual Property or compete with any Person in any line of business or industry, with any Person or in any geographic area;region, (ii) imposing non-solicitation restrictions on any Ameri Company or its Affiliates, (iii) granting to the other party any exclusivity or similar provisions or rights, including any covenant by an Ameri Company that includes an organizational conflict of interest prohibition, restriction, representation, warranty or notice provision or any other restriction on future contracting, (iv) providing “most favored customers” or other preferential pricing terms for the services of any Ameri Company or its Affiliates, or (v) otherwise limiting or restricting the right of an Ameri Company to sell or distribute any Intellectual Property of any Ameri Company or to purchase or otherwise obtain any software or Intellectual Property license.
(viiic) all All of the Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Ameri Company Group is a party, other than by which any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property of its properties or assets (whether real are bound, or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) Ameri Company otherwise has material obligations are in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of businessare valid, binding, and (iv) enforceable in accordance with their terms, subject to performance by and against the Company Group andother party or parties to such Contract, to except as the Company’s Knowledge, each counterparty that is party thereto, subject, in the case of this clause (iv), to enforceability thereof may be limited by the Enforceability Exceptions. Neither There exists no breach, default or violation on the part of an Ameri Company Group noror, to the Company’s KnowledgeKnowledge of Seller, as on the part of the date of this Agreement, any other party to any such Contract nor has any Ameri Company received written or, to the Knowledge of Seller, oral notice of any breach, default or violation. No Ameri Company has received notice of an intention by any party to any such Contract that provides for a Material continuing obligation by any party thereto on the date hereof to terminate such Contract or amend the terms thereof, other than modifications in the Ordinary Course of Business that do not adversely affect any Ameri Company. No Ameri Company has waived any rights under any such Contract. To the Knowledge of Seller, is in material breach no event has occurred which either entitles, or default (whether would, with notice or without the passage lapse of time or both, entitle any party to any such Contract to declare breach, default or violation under any such Contract or to accelerate, or which does accelerate, the giving of notice or both) under the terms maturity of any such Material Contract. The Indebtedness of any Ameri Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect theretosuch Contract.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Contracts. (a) Schedule 4.14(aThe Corporation is not in material breach or violation of, or default (in each case, with or without notice or lapse of time or both) sets forth a trueunder, complete and accurate list, as any Contract of the date of this Agreementtype listed below (the Contracts described in Sections 4.11(a)(i) through 4.11 (a)(x), of together with all of exhibits and schedules thereto being, the following Contracts as amended to date which are currently in effect (collectively, “Material Contracts”) and the Corporation has not received or given any notice of default under any such Material Contract which remains uncured and to the knowledge of the Corporation, there exists no state of facts which after notice or lapse of time or both would constitute a material default or breach of such Material Contract (it being agreed that for the purposes of this Section 4.11(a), the term “material” signifies that the breach or violation or default in question is a Material Adverse Effect):
(i) all Contracts that require any lease of real property by the Corporation, as tenant, with third parties providing for annual payments or expenses incurred by, or annual payments or income to, the Company Group rentals of $200,000 or more more;
(ii) any Contract (other than standard a lease referred to in Section 4.11(a)(i)) under which the Corporation is obliged to make payments on an annual basis in excess of $200,000 in the aggregate;
(iii) any partnership, limited liability company agreement, joint venture, alliance agreement or other similar agreement or arrangement relating to the formation, creation, operation, management, business or Control of any partnership or joint venture which is not wholly-owned by the Corporation (other than any such agreement or arrangement relating to the operation or business of a property in the ordinary course and which is not material with respect to such property) where the Corporation’s obligations with respect to any such partnership or joint venture exceed $200,000 individually;
(iv) any Contract under which Financial Indebtedness in excess of $200,000 is outstanding or may be incurred or pursuant to which any property or asset of the Corporation is mortgaged, pledged or otherwise subject to an Encumbrance (other than Permitted Encumbrances), or any Contract restricting the incurrence of Indebtedness by the Corporation or the incurrence of Encumbrances (other than Permitted Encumbrances) on any properties or securities or restricting the payment of dividends;
(v) any Contract that purports to limit the right of the Corporation to, in any material respect:
(A) engage in any line of business; or
(B) compete with any Person or operate in any location;
(vi) any Contract providing for the sale or exchange of, or option to sell or exchange, any property with a fair market value in excess of $200,000, or for the purchase and sale orders or exchange of, or option to purchase or exchange, any property with a fair market value in excess of $200,000 entered into in the past twelve (12) months or in respect of which the applicable transaction has not been consummated;
(vii) any Contract entered into in the past twelve (12) months or in respect of which the applicable transaction has not yet been consummated for the acquisition or disposition, directly or indirectly (by amalgamation, merger or otherwise), of assets (other than Contracts referenced in Section 4.11(a)(v)(B)) or capital stock or other equity interests of another Person for aggregate consideration in excess of $200,000, in each case other than in the ordinary course of business of the Corporation and in a manner consistent with past practices);
(ii) all sales, advertising, agency, sales promotion, market research, marketing or similar Contracts;
(iii) each Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the Company or any Subsidiary is a party;
(v) all Contracts relating to any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic areapractice;
(viii) all Contracts providing for guarantees, any standstill or where such similar Contract was entered into for currently restricting the primary purpose ability of providing indemnification, other than Standard Contractsthe Corporation to offer to purchase or purchase the assets or equity securities of another Person;
(ix) all Contracts with any Contract among or pertaining to the Company Group to which any Affiliate between shareholders of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employeeCorporation;
(x) all the Contracts relating to property or assets (whether real or personal, tangible or intangible) in which for the sale of uranium produced by the Company Group holds a leasehold interest described in Exhibit 4.11(a)(x) (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year“Product Sales Contracts”);
(xi) all Contracts creating the Lease or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;License Documents; and
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group any Contract (other than Contracts referenced in Sections 4.11(a)(i) through 4.11(a)(ix)) which is required by the organizational Corporation or constitutive documents its affiliates with Securities Regulatory Authorities as a material contract and forming part of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works councilFilings.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of business, and (iv) enforceable by and against the Company Group and, to the Company’s Knowledge, each counterparty There are no Contracts that is party thereto, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as provide for an obligation of the date Corporation of this Agreement, any other party to a Material Contract, is in material breach $200,000 or default (whether with or without the passage more per period of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto12 months.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and There are no Contracts for the sale of uranium produced by the Corporation other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of than the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any IndebtednessProduct Sales Contracts.
Appears in 1 contract
Contracts. (a) Schedule 4.14(aExcept for this Agreement and, as applicable, any Contract listed in Item 15 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2018, any Contract attached as an exhibit to any SEC filing by the Company between January 1, 2019 and the date of this Agreement, and any Contract set forth on Section 3.16(a) sets forth of the Company Disclosure Letter, neither the Company nor any Company Subsidiary is a true, complete and accurate list, party to or bound by any of the following as of the date of this Agreement, of all of the following Contracts as amended to date which are currently in effect (collectively, “Material Contracts”)::
(i) all Contracts that require annual payments or expenses incurred by, or annual payments or income to, any Contract which is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the Company Group of $200,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practicesSEC);
(ii) all sales, advertising, agency, sales promotion, market research, marketing any non-competition Contract or similar Contractsother Contract that purports to limit in any material respect either the type of business in which the Company or any of the Company Subsidiaries or any of their respective Affiliates may engage or the manner or geographic area in which any of them may so engage in any business or contains any material exclusivity provisions;
(iii) each any Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000entered into since January 1, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement 2019 pursuant to which the Company or any Company Subsidiary is a party;
(v) all Contracts relating has completed or agreed to complete any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property properties or assets (whether real that would have required the consent of Parent under Section 5.01(b)(iii) or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of business, and (iv) enforceable by and against the Company Group and, to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of if it had been completed after the date of this Agreement, ;
(iv) any other party to a Material Contract, is in material breach Contract for the acquisition or default (whether with disposition of properties or without assets of the passage of time Company or the giving of notice Company Subsidiaries pursuant to which the Company or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated Subsidiary is subject to continuing “earn-out” or otherwise transferred any of its rights or similar deferred payment obligations under any Material Contract or granted any power of attorney with respect thereto.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or that could reasonably be expected to result in payments by the Company or the Company Subsidiaries in an event amount in excess of default under $1,000,000; (v) any instruments or Contracts establishing or evidencing any Indebtedness.Company Collective Bargaining Agreement;
Appears in 1 contract
Contracts. (a) Schedule Set forth in Section 4.14(a) sets forth of the Company Disclosure Schedules is a true, complete and accurate list, list of each Contract of the following types or having the following terms to which the Company is a party as of the date of this Agreementhereof, of all of the following Contracts as amended to date which are currently in effect (collectively, “Material Contracts”):whether such Contract is based on a written or oral agreement:
(i) all Contracts a Contract that require annual payments purports to limit, curtail or expenses incurred by, or annual payments or income to, restrict the ability of the Company Group or any of $200,000 its Affiliates (including Parent and its Affiliates following the Closing) or more (other than standard purchase and sale orders entered into any Sellers to compete in the ordinary course any geographic area or line of business consistent with past practices)or restrict the Persons to whom the Company or any of its Affiliates (including Parent and its Affiliates following the Closing) or any Seller may sell products or deliver services;
(ii) all sales, advertising, agency, sales promotion, market research, marketing a partnership or similar Contractsjoint venture agreement;
(iii) each a Contract for the acquisition, sale or lease of properties or assets (by merger, purchase or sale of stock, membership interests, assets or otherwise) that contains representations, warranties, covenants, indemnities or other absolute or contingent obligations that are still in effect;
(iv) a Contract with any current employee (x) Governmental Authority or (y) Manager or officer of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control Affiliate of the Company;
(ivv) all Contracts creating a joint ventureloan or credit agreement, strategic alliancemortgage, limited liability company indenture, note or partnership arrangement to which other Contract or instrument evidencing Indebtedness of the Company or any Subsidiary Contract or instrument pursuant to which Indebtedness may be incurred or is a party;
(v) all Contracts relating to any acquisitions or dispositions of assets of value in excess of $100,000 guaranteed by the Company Group (other than acquisitions except for the negotiation or dispositions collection of inventory negotiable instruments in transactions in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoingbusiness);
(vi) all IP Contractsa financial derivatives master agreement or confirmation, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunderor futures account opening agreements and/or brokerage statements, evidencing financial hedging or similar trading activities;
(vii) all Contracts limiting an agreement relating to the freedom of transfer or voting of, or providing for registration rights with respect to, member interests in the Company Group to compete in any line of business or industry, with any Person or in any geographic area(other than the Company Organizational Documents);
(viii) all Contracts providing for guaranteesa mortgage, pledge, security agreement, deed of trust, hypothecation, or where such other Contract was entered into for granting a Lien on any property or assets of the primary purpose of providing indemnificationCompany, other than Standard ContractsPermitted Liens;
(ix) all Contracts any Contract with or pertaining to the Company Group to which any Affiliate health plan customer of the Company Group is that requires a partypayment by any party in excess of, other than any Contracts relating to such Affiliate’s status as or a Company Securityholder or employeeseries of payments that in the aggregate exceed, $50,000 per annum (a “Customer Contract”);
(x) all Contracts relating to property or assets (whether real or personala Contract with a pharmaceutical manufacturer, tangible or intangible) in which the Company Group holds including any such Contract involving any drug rebates, that requires a leasehold interest (including the Lease) and which involve payments to the lessor thereunder payment by any party in excess of, or a series of payments that in the aggregate exceed, $200,000 50,000 per yearannum (a “Manufacturer Contract”);
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness a Contract (other than intercompany Indebtednessone with an employee or consultant or a Customer Contract or Manufacturer Contract) that involves consideration (whether or not measured in cash) of greater than $50,000 or has a duration extending beyond December 31, 2014 unless it may be terminated by the aggregate that are valued at $250,000 or greaterCompany without penalty on not more than 90 days notice;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group)a collective bargaining agreement;
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contracta “standstill” or similar agreement;
(xiv) a Contract for the current employment of any individual on a full-time, part-time, consulting or other basis;
(xv) a Contract providing for severance or similar payments;
(xvi) a Contract by which any Person other than the Equity Incentive Plan and Contracts entered into Sellers is entitled to receive any portion of the Purchase Price, including in connection with the Equity Incentive Plan and subject respect of severance, retention, change in control or similar payments;
(xvii) any lease for real property;
(xviii) to the Equity Incentive Plan, all Contracts under which any extent material to the business or financial condition of the benefitsCompany, compensation any (1) lease or payments rental Contract, (2) product design or the vesting thereofdevelopment Contract, (3) will be increased consulting Contract, (4) indemnification Contract, (5) license or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreementroyalty Contract, or the amount (6) merchandising, sales representative or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement distribution Contract;
(xix) Contracts granting a right of first refusal or any Ancillary Agreementfirst negotiation; and
(xvxx) commitments or agreements to enter into any of the foregoing. In addition, to the Knowledge of the Company, no employee of the Company is a party to or is bound by any agreement that limits the freedom of such employee to engage in a line of business or compete with any other Person, which would prevent him or her from providing the services currently provided to the Company by him or her after the Closing pursuant to the applicable Employment Agreement. Each of the Contracts and other documents required to be listed on Section 4.14(a) of the Company Disclosure Schedule, together with each other Contract of such type entered into in accordance with Section 6.1, a “Material Contract.” The Company has heretofore made available to Parent correct and complete copies of each Material Contract in existence as of the date hereof, together with any and all collective bargaining agreements or other agreement with a labor union, labor organization or works councilamendments and supplements thereto.
(b) Each of the Material Contract Contracts is (i) a valid valid, binding and binding agreement, (ii) in full force and effecteffect and is enforceable in accordance with its terms by the Company, (iii) is on arm’s length terms and was entered into in the ordinary course of business, and (iv) enforceable by and against the Company Group and, subject to the Company’s KnowledgeBankruptcy and Equity Exception. The Company is not in material default under any Material Contract, each counterparty that is party thereto, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as Knowledge of the date Company, does any condition exist that, with notice or lapse of this Agreementtime or both, any would constitute a default thereunder by the Company. To the Knowledge of the Company, no other party to any Material Contract is in material default thereunder, nor, to the Knowledge of the Company, does any condition exist that, with notice or lapse of time or both, would constitute a default thereunder by such other party thereunder, and the Company has not received any notice of termination or cancellation under any Material Contract, is in material received any notice of breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract which breach has not been cured, or granted to any power third party any rights, adverse or otherwise, that would constitute a breach of attorney with respect theretoany Material Contract.
(c) To the Knowledge of the Company, the Company has satisfied all performance standards under any Material Contract where it is required to do so in order to receive any fees, bonuses, rebates, incentives, or other payments at the levels at which it has received fees or payments under such Material Contract in the last or the current fiscal year. The Company Group is in compliance in all material respects with all covenantsnot, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing to the Knowledge of the transactions contemplated Company, the Company has not received any notice that it is: (i) required to return any fees or payments received by this Agreement shall not cause it or result in an event of default to provide credits against any future fees or payment that would otherwise be due to it under any instruments Material Contract, or Contracts establishing or evidencing (ii) subject to any Indebtednesspenalties under any such Material Contract, by reason of its failure to satisfy any performance standard contained in such Material Contract.
Appears in 1 contract
Contracts. (a) Schedule 4.14(aAs of the date of this Agreement, none of the Company or any Company Subsidiary is a party to any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act (a “Filed Company Contract”) that has not been so filed.
(b) Section 5.14(b) of the Company Disclosure Letter sets forth a true, complete and accurate listforth, as of the date of this Agreement, of all of a true and complete list, and the following Contracts as amended Company has made available to date which are currently in effect (collectivelyParent true and complete copies, “Material Contracts”):of:
(i) all Contracts that require annual payments or expenses incurred by, or annual payments or income to, the Company Group of $200,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practices);
(ii) all sales, advertising, agency, sales promotion, market research, marketing or similar Contracts;
(iii) each Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the Company or any Subsidiary is a party;
(v) all Contracts relating to any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group Subsidiaries is a party that purports to restrict in any material respect the ability of the Company or any Company Subsidiaries to (A) compete in any line of business or industrygeographic area or (B) solicit any customers or individuals for employment, in each case that is material to the Company and the Company Subsidiaries, taken as a whole;
(ii) each Contract that relates to the creation, incurrence, assumption, security of, or guarantee of Indebtedness in excess of $100,000 (other than any Indebtedness described in clause (iii) of the definition of Indebtedness) of the Company or any of the Company Subsidiaries that is outstanding or may be incurred by its terms, other than any such agreement solely between or among the Company and the wholly owned Company Subsidiaries or between or among wholly owned Company Subsidiaries;
(iii) each partnership, joint venture, limited liability agreement or similar Contract to which the Company or any of the Company Subsidiaries is a party relating to the formation, creation, operation, management or control of any partnership or joint venture or to the ownership of any equity interest in any entity or business enterprise other than the Company Subsidiaries or securities held for investment by the Company or the Company Subsidiaries in the Ordinary Course of Business;
(iv) each material Contract between the Company or any Company Subsidiary, on the one hand, and, on the other hand, (A) any present executive, officer or director of either the Company or any of the Company Subsidiaries or (B) to the Knowledge of the Company, any affiliate of any such executive, officer or director (other than the Company or any of the Company Subsidiaries), in each case, other than those Contracts filed as exhibits (including exhibits incorporated by reference) to any Company SEC Documents and other than any Company Benefit Plan;
(v) any labor, collective bargaining agreement or similar agreement with any collective bargaining representative, works council or industry trade group to which the Company or a Company Subsidiary is party;
(vi) each Contract relating to the disposition or acquisition by the Company or any of the Company Subsidiaries of any material business or any material amount of assets (x) with material obligations remaining to be performed or material liabilities continuing after the date of this Agreement and (y) involving consideration in excess of $250,000;
(vii) each Contract pursuant to which the Company or any of the Company Subsidiaries has entered into in the six (6) years prior to the date hereof (or prior thereto, if the Company or any Company Subsidiary has ongoing obligations in respect thereof or if the Company or any Company Subsidiary granted to any Person an exclusive license with respect to any Company Intellectual Property) that (A) grants any Patent license to any Person or any other exclusive or material license to any Person to use any of the Company Intellectual Property or (B) receives any material license from any Person to use the Intellectual Property Rights of a third party, in each case, excluding any geographic areaContract pursuant to which the Company or any Company Subsidiary receives any license to use any Off-the-Shelf Software or receives any non-exclusive licenses entered into in the Ordinary Course of Business;
(viii) all Contracts providing for guarantees, each material research or where such Contract was entered into for development agreement (whether related to singular or joint research or development) to which the primary purpose of providing indemnification, other than Standard ContractsCompany or a Company Subsidiary is party;
(ix) all Contracts each Contract with or pertaining a third party to which the Company Group or any Company Subsidiary is a party that would reasonably be expected to which any Affiliate of involve aggregate payments by the Company Group is a party, other than or such Company Subsidiary during calendar year 2019 or any Contracts relating to such Affiliate’s status as a Company Securityholder or employeesubsequent twelve (12)-month period of at least $250,000;
(x) all Contracts relating each Contract with a third party to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds or any Company Subsidiary is a leasehold interest (including the Lease) and which party that would reasonably be expected to involve aggregate payments to the lessor thereunder in excess Company or such Company Subsidiary during calendar year 2019 of at least $200,000 per year125,000;
(xi) all Contracts creating any Contract pursuant to which the Company or otherwise relating any Company Subsidiary grants any third party any “most favored nation” or similar most favored customer status, or rights of first or last offer, negotiation or refusal, in each case, that cannot be cancelled by the Company or any Company Subsidiary without penalty upon less than ninety (90) days’ notice and which is material to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greaterCompany and the Company Subsidiaries, taken as a whole;
(xii) all Contracts relating any Contract that requires or otherwise relates to any future capital expenditures by the voting Company or control of the equity interests any of the Company Group Subsidiaries in excess of $125,000 individually or $250,000 in the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group)aggregate;
(xiii) all Contracts not cancellable by any Contract between the Company Group with no more than sixty (60) days’ notice if the effect or any Company Subsidiary and a U.S. federal or state Governmental Entity of such cancellation would result in monetary penalty to which the Company Group in excess of $200,000 per has Knowledge, pursuant to which the terms of such contractCompany or any Company Subsidiary provides any goods or services;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection any Contract with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any a third party that provides for indemnification or assumption of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated liability by the consummation Company or any Company Subsidiary without limit as to aggregate amount but excluding any such Contract with resellers, customers, licensees or suppliers in their capacity as such;
(xv) any Contract to which the Company or a Company Subsidiary is party providing for the payment, increase or vesting of any material benefits or compensation in connections with the transactions contemplated by this Agreement hereby;
(xvi) any hedging, swap, derivative or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreementsimilar Contract; and
(xvxvii) all collective bargaining agreements any Contract that involves any resolution or settlement of any actual or threatened suit, action or proceeding (x) with a value in excess of $250,000 individually, (y) that provides for any injunctive or other agreement with non-monetary relief or (z) pursuant to which the Company or any of the Company Subsidiaries have any other continuing material obligations, liabilities or restrictions. Each Contract described in this Section 5.14(b) and each Filed Company Contract, in each case, is referred to herein as a labor union, labor organization or works council“Material Contract”.
(bc) Each Except for matters which, individually or in the aggregate, would not have a Company Material Adverse Effect, (i) each Material Contract is in full force and effect and a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, except, in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Laws affecting creditors’ rights generally and by general principles of equity and (ii) none of the Company or any of the Company Subsidiaries is (with or without notice or lapse of time, or both) in breach or default under any such Material Contract and, to the Knowledge of the Company, no other party to any such Material Contract is (i) a valid and binding agreementwith or without notice or lapse of time, (iior both) in full force and effectbreach or default thereunder, (iii) is on arm’s length terms and was entered into in the ordinary course of business, and (iv) enforceable by and against the Company Group and, to the Company’s Knowledge, each counterparty that is party thereto, subjectexcept, in the case of this clause (ivi), with respect to any Material Contract which expires by its terms (as in effect as of the Enforceability Exceptionsdate hereof). Neither the Company Group nor, to the Company’s Knowledge, as As of the date of this Agreement, neither the Company nor any other party of the Company Subsidiaries has received any written notice regarding any actual or alleged material violation or breach of or material default under, or intention to a cancel or materially modify to the detriment of the Company or the Company Subsidiaries, any Material Contract, is except in material breach each case as would not, individually or default (whether with or without in the passage of time or the giving of notice or both) under the terms of any such aggregate, have a Company Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect theretoAdverse Effect.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Contracts. (a) Schedule 4.14(aSection 5.15(a) of the Company Disclosure Letter sets forth a true, complete and accurate list, correct list as of the date of this Agreement, and the Company has, prior to the date of all this Agreement, made available to Parent true, complete and correct copies of each of the following Contracts as amended contracts to date which are currently the Company or any Company Subsidiary is party or by which it or its business or assets is bound (but shall not include purchase orders received or issued by the Company or any of the Company Subsidiaries in effect (collectively, “Material Contracts”the ordinary course of the Company’s business consistent with past practice):
(i) all Contracts any Contract would be required to be filed by the Company as a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the SEC);
(ii) any Contract that require annual payments (A) limits, curtails or expenses incurred byrestricts the ability of the Company or any Company Subsidiary to compete or conduct activities in any geographic area or line of business or with any Person, (B) grants the other party or any third Person “most favored nation” or similar status, or annual any type of special discount rights or (C) contains any right of exclusivity in favor of the other parties thereto;
(iii) settlement, non-prosecution or similar agreements involving payments in excess of $1,000,000 or income to, involving future performance or restraints on action by the Company Group or any of the Company Subsidiaries;
(iv) any joint venture, partnership, strategic alliance or other similar Contract;
(v) any Contract that contains any right of first refusal, first notice or first negotiation with respect to the sale of any equity or material assets of the Company or any of the Company Subsidiaries;
(vi) any Contract relating to the acquisition or disposition of any material business or material assets (whether by merger, sale of stock or assets or otherwise), which acquisition or disposition is not yet complete or where such Contract contains continuing material obligations or liabilities of the Company or any of the Company Subsidiaries;
(vii) any Contract that has continuing indemnification, guarantee, “earn-out” or other contingent payment obligations, in each case that could result in payments in excess of $200,000 1,000,000;
(viii) any Contract with any Governmental Entity;
(ix) any Contract evidencing or more relating to Indebtedness (other than standard purchase intercompany loans) in excess of $1,500,000;
(x) any Contract that (A) obligates the Company or any Company Subsidiary to make a loan or capital contribution to, or investment in excess of $1,000,000 in any Person other than loans to any Company Subsidiary and sale orders entered into advances to employees in the ordinary course of business consistent with past practices);
(ii) all sales, advertising, agency, sales promotion, market research, marketing practice or similar Contracts;
(iii) each Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance obligates the Company or post-termination any Company Subsidiary to provide a guarantee that would reasonably be expected to result in payments or benefits to such employee in excess of $60,000 (1,000,000 other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated guarantees by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the Company or any Company Subsidiary is a party;
(v) all Contracts relating to any acquisitions or dispositions of assets of value in excess of $100,000 by the another Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such AffiliateSubsidiary’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per yearobligations;
(xi) all Contracts creating any sales, distribution, servicing or otherwise relating similar Contract with a Major Customer that provides for the sale by the Company or the Company Subsidiaries of goods or services, and which provides for future payments to outstanding Indebtedness (other than intercompany Indebtedness) the Company or any Company Subsidiary in the aggregate that are valued at excess of $250,000 or greater1,000,000 for any 12-month period;
(xii) all Contracts relating to the voting any mortgage, pledge, security agreement, deed of trust or control of the equity interests of the Company Group or the election of directors of the Company Group other Contract granting an Encumbrance (other than the organizational a Permitted Encumbrance) on any material property or constitutive documents of the Company Group)assets;
(xiii) all Contracts not cancellable by any lease of the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contractLeased Property;
(xiv) any Contract giving the other than party the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject right to the Equity Incentive Plan, all Contracts under which any terminate such Contract as a result of the benefits, compensation this Agreement or payments (or the vesting thereof) will be increased or accelerated by the consummation of the Merger and the other transactions contemplated by this Agreement Agreement, except for any such Contract that, if terminated, would not reasonably be expected to be materially adverse to the business of the Company or any Ancillary AgreementCompany Subsidiary;
(xv) any Contract the termination or breach of which, or the amount or value thereof will be calculated on the basis failure to obtain consent in respect of, the transactions contemplated by this Agreement or any Ancillary Agreementwould have a Company Material Adverse Effect; and
(xvxvi) all collective bargaining agreements any Contract that (A) otherwise does not fit within any of the descriptions set forth in the foregoing clauses (i) through (xiv) above, and (B) by its terms, calls for aggregate payment or receipt by the Company and Company Subsidiaries under such Contract of more than $1,500,000 over the remaining term of such Contract or more than $1,000,000 annually (other agreement with than intercompany payments). Each of the Contracts of any of the types described in this Section 5.15(a) is referred to in this Agreement as a labor union, labor organization or works council“Company Contract.”
(b) Each Material Company Contract is valid, binding on and enforceable in all material respects against the Company or such applicable Company Subsidiary thereto, and, to the Knowledge of the Company, each other party thereto, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles. Except as would not have a Material Adverse Effect, (i) a valid and binding agreementneither the Company nor any Company Subsidiary is and, to the Knowledge of the Company, no other party is, in breach or violation of, or in default under, any Company Contract, (ii) no event has occurred which would result in a breach or violation by the Company or any Company Subsidiary or, to the Knowledge of the Company, by the other party of, or a default by the Company or any Company Subsidiary or, to the Knowledge of the Company, by the other party under, any Company Contract (in each case, with or without notice or lapse of time or both), and (iii) each Company Contract is in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of business, and (iv) enforceable by and against effect with respect to the Company Group or the Company Subsidiaries, as applicable, and, to the Knowledge of the Company’s Knowledge, each counterparty that is party thereto, subject, in the case of this clause (iv), with respect to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of the date of this Agreement, any other party to a Material Contract, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect parties thereto.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Contracts. (a) Schedule 4.14(aSection 5.15(a) sets forth a true, complete and accurate list, as of the date of this Agreement, of all of Parent Disclosure Letter lists the following Contracts as amended to date which are currently in effect (collectively, “Material Contracts”):Parent or any of its Subsidiaries is a party:
(i) all Contracts that require annual payments each “material contract” (as such term is defined in Item 10.C and in Instructions As To Exhibits of Form 20-F) to which Parent or expenses incurred by, any of its Subsidiaries is a party to or annual payments or income to, the Company Group of $200,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practices)bound;
(ii) all sales, advertising, agency, sales promotion, market research, marketing each Contract not contemplated by this Agreement that limits the ability of Parent or similar Contractsany of its Subsidiaries or Affiliates to engage in or compete with any line of business in any location or with any Person in any material manner;
(iii) each Contract that creates a partnership, joint venture or any strategic alliance with any current employee of respect to the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Companyits Subsidiaries;
(iv) all Contracts creating a joint ventureeach employment, strategic allianceconsulting, limited liability company services or partnership arrangement to which the Company similar Contract with any employee or independent contractor of Parent or any Subsidiary is a partyof its Subsidiaries involving more than $250,000 of annual compensation;
(v) all Contracts relating each indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other evidence of Indebtedness or Contract providing for Indebtedness individually in excess of $1,000,000;
(vi) each Contract entered into since January 1, 2016 that relates to the acquisition or disposition, directly or indirectly, of any business (whether by merger, sale of stock, sale of assets or otherwise) or any material assets, including any vessel (other than (A) this Agreement or (B) acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group supplies, inventory, merchandise or products (other than acquisitions or dispositions of inventory vessels) in the ordinary course of business consistent with past practices and other than Contracts or that are obsolete, worn out, surplus or no longer used or useful in which the applicable acquisition conduct of business of Parent or disposition its Subsidiaries), including also any such Contract whenever entered into that includes provisions that remain in effect in respect of “earn-outs” or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunderdeferred or contingent consideration;
(vii) all each ship-sales, memorandum of agreement, bareboat charter, or other vessel acquisition Contract entered into since January 1, 2016 for Newbuildings and secondhand vessels contracted for by Parent or any of its Subsidiaries (other than Company Owned Vessels) and other Contracts limiting entered into since January 1, 2016 with respect to Newbuildings of Parent or any of its Subsidiaries and the freedom of the Company Group to compete in any line of business or industryfinancing thereof, with any Person or in any geographic areaincluding performance guarantees, counter guarantees, refund guarantees, supervision agreements and plan verification services agreements;
(viii) all Contracts providing for guaranteeseach pool agreement, management agreement, crewing agreement or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contractsfinancial lease (including sale/leaseback or similar arrangements) with respect to any Parent Vessel;
(ix) all Contracts any Contract with or pertaining to a Third Party for the Company Group to which charter of any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employeeParent Vessel;
(x) all Contracts relating each collective bargaining agreement or other Contract with a labor union to property which Parent or assets (whether real any of its Subsidiaries is a party or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per yearotherwise bound;
(xi) all Contracts creating each Contract that provides for indemnification by Parent or otherwise relating any of its Subsidiaries to outstanding Indebtedness (any Person other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of business, and ;
(ivxii) enforceable by and against the Company Group and, each Contract pursuant to the Company’s Knowledge, each counterparty that is party thereto, subjectwhich Parent or any of its Subsidiaries spent or received, in the case of this clause aggregate, more than $500,000 during the twelve (iv), 12) months prior to the Enforceability Exceptions. Neither date hereof or could reasonably be expected to spend or receive, in the aggregate, more than $500,000 during the twelve (12) months immediately after the date hereof;
(xiii) each Contract to which Parent or any of its Subsidiaries is a party or otherwise bound that contains a so-called “most favored nations” provision or similar provisions requiring Parent or its Affiliates to offer to a Person any terms or conditions that are at least as favorable as those offered to one or more other Persons; and
(xiv) each Contract involving a standstill or similar obligation of Parent or any of its Subsidiaries.
(b) Parent has heretofore made available to the Company Group nor, to true and complete copies of the Company’s Knowledge, Material Contracts as in effect as of the date hereof. Except as set forth on Section 5.15(b) of this Agreementthe Parent Disclosure Letter or as would not reasonably be expected to be material to Parent and its Subsidiaries, taken as a whole, (i) each of the Material Contracts is valid, binding, enforceable and in full force and effect with respect to Parent and its Subsidiaries, and to the Knowledge of Parent, the other parties thereto, except to the extent that the enforceability thereof may be limited by the Equitable Exceptions and except for any Material Contracts that have expired or been terminated after the date hereof in accordance with its terms, and (ii) neither Parent nor any of its Subsidiaries, nor to the Knowledge of Parent any other party to a Material Contract, is in material has violated any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a breach or default (whether with under, or without the passage give rise to any right of time cancellation or the giving termination of notice or both) under the terms of any consent under, such Material Contract. The Company Group has not assigned, delegated or otherwise transferred and neither Parent nor any of its rights Subsidiaries has received written notice that it has breached, violated or obligations defaulted under any Material Contract or granted any power of attorney with respect theretoContract.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Contracts. The Company represents that:
(a) Schedule 4.14(a4.17(a) sets forth contains a truecomplete, complete current and accurate list, as of the date of this Agreement, correct list of all of the following types of Contracts as amended (including oral Contracts) to date which a Group Company is a party, by which any of its properties or assets are currently in effect (collectivelybound, “Material Contracts”):
or under which a Group Company otherwise has material obligations, with each such responsive Contract identified by each corresponding category (i) all – (xii) below: (i) any Contract with any Top Customer or Top Supplier; (ii) any Contract or group of related Contracts which involve expenditures or receipts by the Group Companies that require annual payments or expenses incurred by, or annual payments or income to, the Company Group yield receipts of more than $200,000 100,000 in any twelve (12) month period or more than $250,000 in the aggregate; (iii) any Contract with any of its officers, directors, employees, consultants or Affiliates (other than standard purchase and sale orders at-will employment arrangements with employees entered into in the ordinary course Ordinary Course of business consistent with past practicesBusiness);
(ii) , including all salesnon-competition, advertising, agency, sales promotion, market research, marketing or similar Contracts;
(iii) each Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000severance, and which is not terminable indemnification agreements; (iv) any agreement presently in effect for any reason or no reason upon reasonable notice without payment the license of any penalty, severance Intellectual Property involving the payment by or other obligation; (B) providing for severance or post-termination payments or benefits to such employee a Group Company in excess of $60,000 100,000 per year; (other than COBRA obligations or similar requirements under applicable local Law)v) any power of attorney; or (Cvi) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all Contracts creating a partnership, joint venture, strategic alliance, limited liability company profit-sharing or partnership arrangement to which the Company or similar agreement entered into with any Subsidiary is a party;
Person; (vvii) all Contracts relating to any acquisitions merger, consolidation or dispositions other business combination with any other Person or the acquisition or disposition of any other entity or its business, its equity securities or its material assets or the sale of value a Group Company, its business, its equity securities or its material assets (other than in the Ordinary Course of Business); (viii) any loan agreement, agreement of Indebtedness, credit, note, security agreement, guarantee, mortgage, indenture or other document relating to Indebtedness, borrowing of money or extension of credit by or to a Group Company in excess of $100,000 by 100,000; (ix) any material settlement agreement entered into within three (3) years prior to the date of this Agreement or under which a Group Company Group has outstanding obligations (other than acquisitions customary obligations of confidentiality); (x) any Contract granting, licensing, sublicensing or dispositions otherwise transferring any Intellectual Property of inventory a Group Company other than licenses of a Group Company’s Intellectual Property included in such Group Company’s form customer agreements entered into in the ordinary course Ordinary Course of business consistent with past practices Business; (xi) any agreement entered into outside the Ordinary Course of Business and other than Contracts presently in which the applicable acquisition effect, involving payment to or disposition or transaction has been consummated and there are no material obligations of in excess of $100,000, not otherwise described in this Section 4.17(a); and (xii) any party thereto ongoing);other Contract that is material to a Group Company.
(vib) all IP ContractsExcept as set forth on Schedule 4.17(b), separately identifying all such IP Contracts under which the no Group Company is obligated a party to pay royalties thereunder and all such IP Contracts under which or bound by any Contract containing any covenant (i) limiting in any respect the right of any Group Company is entitled or its Affiliates to receive royalties thereunder;
(vii) all Contracts limiting the freedom engage in any line of the Company Group business, to make use of any of its Intellectual Property or compete with any Person in any line of business or industry, with any Person or in any geographic area;region, (ii) imposing non-solicitation restrictions on any Group Company or its Affiliates, (iii) granting to the other party any exclusivity or similar provisions or rights, including any covenant by ta Group Company that includes an organizational conflict of interest prohibition, restriction, representation, warranty or notice provision or any other restriction on future contracting, (iv) providing “most favored customers” or other preferential pricing terms for the services of any Group Company or its Affiliates, or (v) otherwise limiting or restricting the right of a Group Company to sell or distribute any Intellectual Property of any Group Company or to purchase or otherwise obtain any software or Intellectual Property license.
(viiic) True and correct copies of all the Contracts providing for guaranteesrequired to be listed in Schedule 4.17(a) or Schedule 4.17(b) (including any amendments, modifications or where such Contract was entered into for supplements thereto) have been provided to Purchaser. All of the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Group Company Group is a party, other than by which any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property of its properties or assets (whether real are bound, or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) Group Company otherwise has material obligations are in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of businessare valid, binding, and (iv) enforceable in accordance with their terms, subject to performance by and against the Company Group andother party or parties to such Contract, to except as the Company’s Knowledge, each counterparty that is party thereto, subject, in the case of this clause (iv), to enforceability thereof may be limited by the Enforceability Exceptions. Neither There exists no breach, default or violation on the part of a Group Company Group noror, to the Company’s Knowledge, as Knowledge of the date Company, on the part of this Agreement, any other party to any such Contract nor has any Group Company received written or, to the Knowledge of the Company, oral notice of any breach, default or violation. No Group Company has received notice of an intention by any party to any such Contract that provides for a Material continuing obligation by any party thereto on the date hereof to terminate such Contract or amend the terms thereof, other than modifications in the Ordinary Course of Business that do not adversely affect any Group Company. No Group Company has waived any material rights under any such Contract. To the Knowledge of the Company, is in material breach no event has occurred which either entitles, or default (whether would, with notice or without the passage lapse of time or both, entitle any party to any such Contract to declare breach, default or violation under any such Contract or to accelerate, or which does accelerate, the giving of notice or both) under the terms maturity of any Indebtedness of any Group Company under any such Material Contract. The To the Knowledge of the Company, there is no reason to believe that any such Contract with a customer of a Group Company Group has will not assigned, delegated or otherwise transferred any remain in effect after the Closing through the remainder of its rights term or obligations under any Material Contract continue to generate substantially the same or granted any power more revenue after the Closing through the remainder of attorney with respect theretoits term as it currently generates.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Contracts. (a) Schedule 4.14(aSection 4.9(a) sets forth of the Company Disclosure Letter identifies each Company Contract that constitutes a true, complete and accurate list, Material Contract as of the date Agreement Date. Each of the following Company Contracts shall be deemed to constitute a “Material Contract” for purposes of this Agreement, of all of the following Contracts as amended to date which are currently in effect (collectively, “Material Contracts”)::
(i) all Contracts any Company Contract that requires by its terms or is reasonably likely to require annual payments the payment or expenses incurred by, delivery of cash or annual payments other consideration by or income to, to the Company Group in an amount having an expected value in excess of $200,000 or more (other than standard purchase and sale orders entered into 1,000,000 in the ordinary course of business consistent with past practices)fiscal year ending December 31, 2022 or in any fiscal year thereafter, excluding commercially available off-the-shelf software licenses;
(ii) all any Company Contract (other than any Company Stock Awards) pursuant to which the Company has contingent obligations that upon satisfaction of certain conditions precedent will result in the payment by the Company of more than $250,000 in the aggregate in the fiscal year ending December 31, 2022 or in any fiscal year thereafter, in either milestone payments or royalties or other amounts calculated based upon (A) the achievement of regulatory or commercial milestones or (B) the receipt of revenue or income based on product sales, advertising, agency, sales promotion, market research, marketing or similar Contracts;
(iii) each any Company Contract with any current employee of the Company Group (A) which has continuing obligations for payment granting any covenant not to sue or limiting the freedom or right of an annual compensation the Company, in any material respect, to engage in any line of at least $200,000business, and which is not terminable for to make use of or enforce its rights under any reason material Company IP (other than pursuant to any Outbound License) or no reason upon reasonable notice without payment to compete with any other Person in any location or line of any penaltybusiness, severance or other obligation; (B) providing for severance or post-termination payments or benefits containing any “most favored nations” terms and conditions (including with respect to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); pricing) granted by the Company or (C) providing for a payment containing exclusivity obligations or benefit upon the consummation of the transactions contemplated by this Agreement restrictions or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the Company or any Subsidiary is a party;
(v) all Contracts relating to any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts otherwise limiting the freedom or right of the Company Group to compete in sell, distribute or manufacture any line of business products or industryservices or any technology or other assets to or for any other Person (which, with for clarity, excludes any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining field-of-use limitations pursuant to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any inbound license of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was Intellectual Property entered into in the ordinary course of business, and );
(iv) enforceable any Company Contract constituting a joint venture, partnership, profit sharing or similar arrangement;
(v) any Company Contract 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 Company Contracts pursuant to Company Stock Awards);
(vi) any Company Contract entered into since January 1, 2020 that relates to the acquisition or disposition of any Entity or any line of business or division of any Entity, a material amount of stock or assets of any Person or any real property (whether by merger, sale of stock, sale of assets or otherwise) but excluding any transfer agreements, services agreements, clinical trial agreements and against non-exclusive licenses granted in the ordinary course of business;
(vii) any Company Contract with any Governmental Body;
(viii) any Company Contract that is a settlement, conciliation or similar agreement (A) in respect of the Company Group and, to the Company’s Knowledge, each counterparty that is party thereto, subjectProduct or (B) with or approved by any Governmental Body, in the case of this clause each clauses (ivA) and (B), pursuant to which (1) the Company will be required after the Agreement Date to pay any monetary obligations or (2) that contains material obligations or limitations on the Company’s conduct;
(ix) any Company Contract relating to Indebtedness in excess of $1,000,000 (whether incurred, assumed, guaranteed or secured by any asset) of the Company or subjecting to any Encumbrance (other than Permitted Encumbrances) any right or other asset or property of the Company;
(x) any hedging, swap, derivative or similar Company Contract;
(xi) any Company Contract for the lease or sublease of any material real property;
(xii) any Company Contract that provides for indemnification or guarantee of the obligations of any other Person that would be material to the Enforceability ExceptionsCompany taken as a whole (excluding indemnities contained in agreements for the purchase, sale or license of products, materials or services entered into in the ordinary course of business);
(xiii) any Company Contract that prohibits the payment of dividends or distributions in respect of the capital stock of the Company, the pledging of the capital stock or other equity interests of the Company or prohibits the issuance of any guaranty by the Company;
(xiv) any Company Contract relating to the Company Product containing terms addressing or relating to (A) clinical drug development, clinical pilot programs, clinical trials or other clinical testing programs (other than clinical trial agreements entered into in the ordinary course of business), including any material collaboration, joint development or other similar agreement, (B) the supply, manufacturing, distribution, commercialization, purchase or sale of the Company Product (including any sole source supply, co-promotion, sales representative, distribution, wholesaler, reseller or other similar agreement) or (C) the pricing or reimbursement terms for the Company Product, in the case of each of clauses (A), (B) and (C), that requires by its terms or is reasonably likely to require the payment or delivery of cash or other consideration by or to the Company in an amount having an expected value in excess of $250,000;
(xv) any other Company Contract that is currently in effect and has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act.
(b) As of the Agreement Date, the Company has either delivered or made available to Parent or Parent’s Representatives an accurate and complete copy of each Material Contract or has publicly made available an unredacted copy of such Material Contract in the Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) database of the SEC. Neither the Company Group nor, to the Company’s Knowledge, as Knowledge of the date of this AgreementCompany, any the other party to a Material Contract, is in material breach of or material default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.
(c) The and, neither the Company Group is in compliance in all material respects with all covenantsnor, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing to the Knowledge of the transactions contemplated by this Agreement shall not cause Company, the other party has taken or result in an event failed to take any action that, with or without notice, lapse of time or both, would constitute a material breach of or material default under any instruments Material Contract. Each Material Contract is, with respect to the Company and, to the Knowledge of the Company, the other party, a valid agreement, binding, and in full force and effect. To the Knowledge of the Company, each Material Contract is enforceable by the Company in accordance with its terms, subject to the Bankruptcy and Equity Exceptions. Since January 1, 2020, through the Agreement Date, the Company has not received any written notice regarding any material violation or Contracts establishing breach or evidencing default under any IndebtednessMaterial Contract that has not since been cured. The Company has not waived in writing any rights under any Material Contract, the waiver of which would have or be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
Appears in 1 contract
Contracts. (a) Schedule 4.14(a) sets The Company Disclosure Schedules set forth a true, complete and accurate list, list as of the date of this Agreement, hereof of all of the following Contracts as amended to date which are currently in effect the Company or any of its Subsidiaries is a party or by which any of them is bound (collectively, the “Material Contracts”):
(i) all Contracts that require annual payments or expenses incurred by, or annual payments or income to, the Company Group evidencing Indebtedness in excess of $200,000 250,000 (or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practicesany guarantee thereof);
(ii) all sales, advertising, agency, sales promotion, market research, marketing or similar ContractsCompany IP Agreements that are material to the operation of the business of the Company and its Subsidiaries as currently conducted;
(iii) each Contract with any current employee of Contracts relating to the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason acquisition or no reason upon reasonable notice without payment disposition of any penaltyequity, severance business, product line or other obligation; material assets or properties of any Person entered into at any time during the last three (B3) providing for severance years (or postcontaining any “earn-termination payments out” or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Lawcontingent payment obligation that is still outstanding); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the Company or any Subsidiary is a party;
(v) all Contracts relating to any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete engage in any line of business business, acquire any entity or industry, compete with any Person or in any geographic market or geographical area;
(viiiv) all Contracts Joint venture, partnership, limited liability company or other similar agreements (including any agreement providing for guaranteesjoint research, development, distribution or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contractsmarketing);
(ixvi) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts Contacts relating to such Affiliate’s status as a Company Securityholder any interest rate, foreign exchange, derivatives or employeehedging transaction;
(xvii) all Contracts relating to property that are settlement or assets (whether real similar agreements with any Governmental Authority or personal, tangible or intangible) in which that bind the Company Group holds a leasehold interest (including or any of its Subsidiaries to any conduct or equitable relief or that require the Lease) and which involve payments Company or any of its Subsidiaries to the lessor thereunder pay an amount of money in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate 250,000 that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts has not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of business, and (iv) enforceable by and against the Company Group and, to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, been completely paid as of the date of this Agreement;
(viii) Contracts under which the Company is lessee of, or holds or operates any personal property owned by any other party party, for which the annual rental exceeds $100,000;
(ix) Contracts relating to a Material Contract, is any capital expenditure or leasehold improvement in material breach excess of $250,000 in the aggregate that have commenced but are not yet completed or default (whether with that obligate the Company or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power Subsidiaries to incur expenditures in excess of attorney $250,000 in the aggregate with respect theretoto a project that is not yet commenced; and
(x) Contracts not otherwise of a type listed above (other than Contracts with customers or data suppliers) involving reasonably anticipated payments to or from the Company or any of its Subsidiaries in excess of $250,000 per annum and which do not expire or are not terminable at the option of the Company or any of its Subsidiaries without substantial cost or penalty within a period of ninety (90) days.
(cb) The A true and complete copy of each Material Contract as in effect on the date hereof has been made available to Parent. No material default by the Company Group or any of its Subsidiaries, or, to the Knowledge of the Company, the other party or parties thereto, exists under any of the Material Contracts. Each of the Material Contracts is in compliance in all material respects with all covenantsvalid and legally binding on, including all financial covenantsand enforceable against, the Company or one of its Subsidiaries, as applicable, and, to the Knowledge of the Company, on and against the other party or parties thereto, in all notesaccordance with its terms, indenturessubject to bankruptcy, bonds insolvency, reorganization and other instruments Laws of general applicability relating to or Contracts establishing or evidencing any Indebtedness. The consummation affecting creditors’ rights and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtednessto general equity principles.
Appears in 1 contract
Contracts. (a) Schedule 4.14(aSection 3.15(a) sets forth of the Company Matters Letter contains an accurate and complete list of the following Contracts to which the Company or any Subsidiary of the Company is a true, complete and accurate list, party or by which it is bound as of the date of this Agreementhereof (each such Contract, of all whether or not set forth in such section of the following Contracts as amended to Company Matters Letter, and each such Contract entered into after the date which are currently hereof that if in effect (collectivelyas of the date hereof would be required to be disclosed in Section 3.15(a) of the Company Matters Letter, a “Company Material ContractsContract”):
(i) all Contracts that require annual payments or expenses incurred by, or annual payments or income to, (A) each employment agreement entered into by the Company Group or any Subsidiary of $200,000 the Company or more (other than standard purchase and sale orders entered into B) each Contract the terms of which obligate or may in the ordinary course future obligate the Company or any Subsidiary of business consistent with past practices)the Company to make any change of control or other similar payment to any current or former employee;
(ii) all saleseach Contract (A) materially limiting the freedom or right of the Company or any Subsidiary of the Company (or, advertisingafter the Effective Time, agencyParent or any of its Affiliates) to engage in any line of business, sales promotion, market including the research, marketing development and commercialization of the Products, to make use of any material Company Intellectual Property or to compete with any other Person in any location or line of business, (B) containing any “most favored nations” terms and conditions (including with respect to pricing) or exclusivity obligations (other than any non-disclosure, confidentiality or other similar agreement), (C) granting any right of first refusal, right of first offer or similar Contractsright or (D) containing any other term, condition or clause that, individually or in the aggregate, limits or purports to limit in any material respect the ability of the Company or any Subsidiary of the Company to own, operate, manufacture, sell, distribute, transfer, pledge or otherwise dispose of any material assets or business of the Company or any Subsidiary of the Company (or, after the Effective Time, Parent or its Affiliates);
(iii) each Contract in connection with a Related Party Transaction;
(iv) each Contract 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 Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control Subsidiary of the Company;
(ivv) all Contracts creating a joint ventureeach material lease agreement under which the Company or any Subsidiary of the Company leases, strategic alliance, limited liability company subleases or partnership arrangement licenses any real property;
(vi) each lease agreement under which the Company or any Subsidiary of the Company leases personal property (not relating primarily to real property) pursuant to which the Company or any Subsidiary of the Company is a party;
(v) all Contracts relating required to any acquisitions or dispositions of assets of value make rental payments in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder250,000 per year;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
each Contract (viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangibleA) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests any Subsidiary of the Company Group or the election has agreed to purchase a minimum quantity of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty goods relating to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of business, and (iv) enforceable by and against the Company Group and, to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of the date of this Agreement, any other party to a Material Contract, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect thereto.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.Product or
Appears in 1 contract
Contracts. (a) Schedule 4.14(aExcept as disclosed in Section 3.11(a) sets forth of the Company Disclosure Letter, neither the Company nor any of the Company Subsidiaries is a trueparty to, complete and accurate listbound by or subject to any Contract (whether written or oral) (i) that is a “material contract” (within the meaning of Item 601(b)(10) of the SEC’s Regulation S-K) to be performed after the date of this Agreement, as (ii) that contains a non-compete or non-solicit requirement or other provision that restricts in any material respect the conduct of, or the manner of conducting, any line of business by the Company or any of the Company Subsidiaries (including any geographic limitations), or upon consummation of the Offer or the Merger could restrict in any material respect the ability of Parent, the Surviving Corporation or any of their respective Subsidiaries to engage in any line of business (including any geographic limitations), (iii) that obligates the Company or any of the Company Subsidiaries to conduct business on an exclusive or preferential basis with any Third Party or containing “most favored nation” rights or upon consummation of the Offer or the Merger will obligate Parent, the Surviving Corporation or any of their respective Subsidiaries to conduct business with any Third Party on an exclusive or preferential basis or pursuant to “most favored nation” rights, (iv) with or to a labor union or guild (including any collective bargaining agreement), (v) that creates a partnership, joint venture, strategic alliance or similar arrangement with respect to any business of the Company, including all operating agreements for all Joint Venture Subsidiaries, (vi) that is an indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other Contract providing for or guaranteeing indebtedness in excess of $50,000, (vii) that, individually or together with related Contracts, provides for the acquisition, disposition, license, use, distribution or outsourcing, after the date of this Agreement, of all of the following Contracts as amended to date which are currently in effect (collectivelyassets, “Material Contracts”):
(i) all Contracts that require services, rights or properties with a value or requiring annual payments or expenses incurred by, or annual payments or income to, the Company Group of $200,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practices);
(ii) all sales, advertising, agency, sales promotion, market research, marketing or similar Contracts;
(iii) each Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee fees in excess of $60,000 75,000, (other than COBRA obligations viii) that involves aggregate payments by or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the Company or any Subsidiary is a party;
(v) all Contracts relating to any acquisitions or dispositions of assets of value its Subsidiaries in excess of $75,000 in any twelve month period or more than $100,000 through the remaining term of the Contract, except for any Contract that may be cancelled without penalty by the Company Group or any of its Subsidiaries upon notice of 60 days or less, (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(viix) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom that includes an indemnification obligation of the Company Group to compete in or any line of business or industry, its Subsidiaries with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder maximum potential liability in excess of $200,000 per year;
50,000, (x) that is a Lease, (xi) all Contracts creating or otherwise relating to outstanding Indebtedness concerning Intellectual Property (other than intercompany Indebtedness) in the aggregate that are valued at generally commercially available, non-custom, off-the-shelf software licenses having a retail acquisition price of less than $250,000 or greater;
2,000), (xii) all Contracts relating with a physician or other Third Party who is in a position to the voting make or control of the equity interests of influence referrals to or otherwise generate business for the Company Group or any Company Subsidiary, including the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
Physician Contracts, (xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
that is a medical directorship service agreement or any similar agreement, (xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreementthat is a Third Party payor Contract, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) the loss of which would reasonably be expected to have a Company Material Adverse Effect. Each Contract of the type described in this Section 3.11(a) is referred to herein as a “Material Contract.” True and complete copies of all collective bargaining agreements Material Contracts in effect on the date hereof have been made available to Parent on or other agreement with a labor union, labor organization or works councilprior to the date hereof.
(bi) Each Material Contract is (i) a valid and binding agreementon the Company or the applicable Company Subsidiary, (ii) enforceable against it in accordance with its terms and is in full force and effect, (iiiii) is on arm’s length terms and was entered into in the ordinary course of business, and (iv) enforceable by and against the Company Group and each of the Company Subsidiaries and, to the Knowledge of the Company’s Knowledge, each counterparty other party thereto has duly performed all obligations required to be performed by it under each Material Contract, and (iii) no event or condition exists that is party theretoconstitutes or, subjectafter notice or lapse of time or both, in will constitute, a breach, violation or default on the case part of this clause (iv)the Company or any of the Company Subsidiaries or, to the Enforceability Exceptions. Neither the Company Group nor, to Knowledge of the Company’s Knowledge, as of the date of this Agreement, any other party to a Material Contractthereto, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assignedThere are no disputes pending or to the Knowledge of the Company, delegated or otherwise transferred any of its rights or obligations under threatened with respect to any Material Contract or granted any power of attorney with respect theretoContract.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Contracts. (a) Schedule 4.14(aNeither the Company nor any Subsidiary nor, in the case of (xiii) sets forth below, any Affiliate of the Company, is a true, complete and accurate list, party to or is bound by:
(i) any contract or commitment (other than those with respect to which the Company has not yet received an invoice as of the close of business on the second business day immediately preceding the date of this Agreement) which creates an obligation on the part of the Company or any Subsidiary in excess of $200,000;
(ii) any contract or commitment which obligates the Company or any Subsidiary to deliver any hardware, software, technology or services or rights related thereto and which has generated, within the twelve months preceding the date of this Agreement, or is forecasted to generate, within the twelve month period after the date of all of the following Contracts as amended to date which are currently this Agreement, revenue (excluding revenue from discontinued operations) in effect (collectively, “Material Contracts”):
(i) all Contracts that require annual payments or expenses incurred by, or annual payments or income to, the Company Group excess of $200,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practices);
(ii) all sales, advertising, agency, sales promotion, market research, marketing or similar Contracts1,000,000;
(iii) each Contract with any current employee waiver or release of the Company Group Company's or any Subsidiary's rights (Aother than those related to discontinued operations) which has continuing obligations for payment against a third party (other than immaterial rights) within the past six months;
(iv) any debt instrument, including, without limitation, any loan agreement, line of an annual compensation of at least $200,000credit, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penaltypromissory note, severance security agreement or other obligation; (B) providing for severance evidence of indebtedness, where the Company or post-termination payments any Subsidiary is a lender, borrower or benefits to such employee guarantor, in a principal amount in excess of $60,000 50,000;
(other than COBRA obligations v) any contract or commitment restricting the Company, any Subsidiary or, to the knowledge of the Company, any of their respective employees of the title of Senior Vice President or higher from engaging in any activity or line of business or competing with any Person or limiting the ability of any Person to compete with the Company or any Subsidiary;
(vi) any alliance, cooperation, joint venture, stockholders', partnership or similar requirements under applicable local Law); agreement;
(vii) any research, development, distributorship, sales agency, sales representative, marketing or (C) providing for a payment reseller agreement related to the business or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control technology of the Company;
(ivviii) any agreement, option or commitment or right with, or held by, any third party to acquire, use or have access to any assets or properties, or any interest therein, of the Company or any Subsidiary;
(ix) any employment, severance or consulting contract which is material to the business of the Company or its Subsidiaries;
(x) any agreement which, if terminated, would reasonably be expected to result in a Material Adverse Effect;
(xi) any material license, sublicense, development, support or maintenance agreement;
(xii) any agreement relating to common or preferred stock issued by the Company or any Subsidiary;
(xiii) any agreement which provides rights to parties other than the Company or any Subsidiary which are contingent upon a merger, consolidation or other "change-in-control" of the Company;
(xiv) any agreement containing confidentiality and non-disclosure obligations from the Company which, if violated, could reasonably be expected to result in a Material Adverse Effect; or
(xv) any other agreement that (A) involves the payment or potential payment, pursuant to the terms of any such agreement, by or to the Company or any Subsidiary of more than $200,000 and (B) cannot be terminated within 60 calendar days after giving notice of termination without resulting in any material cost or penalty to the Company or any Subsidiary.
(b) The agreements listed in Section 3.12 of the Disclosure Schedule are all Contracts creating a joint venture, strategic alliance, limited liability company the material agreements relating to the ownership or partnership arrangement operation of the currently conducted and contemplated business of the Company or to the property presently held or used by the Company or any Subsidiary or to which the Company or any Subsidiary is a party;
party or to which it or any of its properties and assets is subject or bound. The Company has previously delivered (vor made available) true, complete and correct copies of all Contracts relating such agreements (including all amendments) to any acquisitions or dispositions Siemens (or, in the case of assets oral agreements only, true, complete and correct descriptions thereof have been set forth in Section 3.12 of value in excess of $100,000 by the Disclosure Schedule). Neither the Company Group (other than acquisitions or dispositions nor any Subsidiary is or, to the knowledge of inventory in the ordinary course of business consistent with past practices and other than Contracts in which Company, is alleged to be, and, to the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom knowledge of the Company Group and its Subsidiaries, no other party to compete any such agreement is, in default in any line of business or industrymaterial respect under any such agreement and, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status except as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or after the amount or value thereof Merger all of such agreements will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) remain in full force and effect, (iii) is on arm’s length terms except for agreements which, by their terms, terminate prior to the consummation of the Merger. No additional consideration shall be due under such contracts as a result of the Merger and was entered into in the ordinary course of business, and (iv) enforceable by and against neither the Company Group and, to the Company’s Knowledge, each counterparty that nor any Subsidiary is party thereto, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of the date of this Agreement, any other party to a Material Contract, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of currently renegotiating any such Material Contract. The Company Group has not assigned, delegated agreement or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect theretopaying liquidated damages in lieu thereof.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Contracts. (a) Schedule 4.14(a) sets Except as set forth a true, complete and accurate list, as in Section 3.16 of the date of this AgreementDisclosure Schedule, of all none of the following Seller and its Subsidiaries is party to any contract or agreement (“Contract”) relating to the Electrical Business and of the type described below (such Contracts as amended to date which are currently in effect (collectively, required to be listed on Section 3.16 of the Disclosure Schedules are referred to herein as the “Material Contracts”):
(ia) all Contracts that require annual any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $50,000 per annum;
(b) any agreement (or expenses incurred bygroup of related agreements) for the purchase or sale of raw materials, commodities, supplies, products, or annual payments other personal property with a Material Supplier, or income tofor the furnishing of goods or services to a Material Customer, the Company Group of $200,000 or more (in each case, other than standard purchase and sale orders entered into in the ordinary course Ordinary Course of business consistent with past practices)Business;
(iic) all sales, advertising, agency, sales promotion, market research, marketing any agreement concerning a partnership or similar Contractsjoint venture;
(iiid) each Contract with any current employee agreement (or group of related agreements) under which the Company Group (A) which Electrical Business has continuing obligations created, incurred, assumed, or guaranteed any indebtedness for payment of an annual compensation of at least $200,000borrowed money, and which is not terminable for or any reason or no reason upon reasonable notice without payment of any penaltycapitalized lease obligation, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (250,000 or under which it has imposed a Lien on any of its assets, tangible or intangible, other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the CompanyPermitted Encumbrances;
(ive) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which the Company or any Subsidiary is a partycollective bargaining agreement;
(vf) all Contracts relating any license of material Intellectual Property or other agreement involving Intellectual Property used in the Electrical Business (including any covenants not to ▇▇▇, settlement agreements, or coexistence agreements, but excluding any acquisitions licenses for commercially available off-the-shelf software or dispositions Intellectual Property used in providing the services under the Transition Services Agreement;
(g) any agreement for the employment of assets of value any Person on a full time, part time, consulting, or other basis providing annual compensation in excess of $100,000 by or requiring the Company Group (other than acquisitions Electrical Business to provide material severance benefits which is or dispositions would become an obligation of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition Buyer or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing)Acquired Company;
(vih) all IP Contractsany settlement, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business conciliation or industry, similar agreement with any Person Governmental Entity or in any geographic area;
(viii) all Contracts providing for guaranteespursuant to which, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of business, and (iv) enforceable by and against the Company Group and, to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as of after the date of this Agreement, the Electrical Business will be required to pay consideration in excess of $100,000;
(i) any agreement under which the Electrical Business has advanced or loaned any amount to any of its directors, officers, and employees outside the Ordinary Course of Business;
(j) any Contract prohibiting any of the Acquired Companies or the Electrical Business, now or in the future, from freely engaging in any business or competing anywhere in the world;
(k) any Contract with a Material Customer or Material Supplier (A) providing for any Person to be the exclusive or preferred provider of any product or service to an Acquired Company or the Electrical Business or that otherwise involves the granting by an Acquired Company or the Electrical Business to any Person of exclusive or preferred rights, (B) granting to any Person a right of first refusal or right of first offer on the sale of any part of the assets or business of the Electrical Business, or (C) containing a provision of the type commonly referred to as “most favored nation” provision for the benefit of a Person other than the Electrical Business;
(l) any power of attorney or other similar Contract or grant of agency granting material powers to any Person other than to an employee of an Acquired Company; and
(m) any other party agreement (or group of related agreements), other than with a customer or supplier that is not a Material Customer or a Material Supplier, the performance of which involves (or would reasonably be expected to involve) consideration to be paid after Closing by or to the Buyer or an Acquired Company in excess of $150,000 per annum. The Seller has made available to Buyer a true and complete copy of each written Material Contract. The Acquired Companies and the Electrical Business are not bound by any oral Material Contract. Each Material Contract is valid and binding on the Seller or a Subsidiary of the Seller and, to the Knowledge of the Seller, is valid and binding on the other parties thereto. The Seller and its Subsidiaries and, to the Knowledge of Seller, the other parties thereto are not in material default or breach under any such Material Contract, is in material breach or default (whether and, to the Seller’s Knowledge, there are no pending claims affecting the Material Contracts. To the Seller’s Knowledge, there has not occurred any event that, with or without the passage lapse of time or the giving of notice or both) , would constitute a default or breach under a Material Contract by the terms Seller or its Subsidiaries, or to the Seller’s Knowledge, any of the other parties to such Material Contract. To Seller’s Knowledge, no Acquired Company has received notice to the effect that any other party to any Material Contract intends to cancel or terminate any such Material Contract. The Company Group has To the Seller’s Knowledge, no consent set forth on Schedule 5.2 is likely to not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect theretobe obtained prior to the Closing.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Sources: Purchase Agreement (Actuant Corp)
Contracts. (a) Schedule 4.14(aExcept (i) sets for this Agreement, (ii) for the Contracts filed no less than two Business Days prior to the date hereof as exhibits to the SEC Reports, (iii) for the Company Plans and (iv) as set forth a true, complete and accurate listin Section 3.8(a) of the Company Disclosure Letter, as of the date hereof, neither the Company nor any of this Agreementits subsidiaries or Affiliated Entities is party to or bound by any note, of all of the following Contracts as amended to date which are currently in effect bond, mortgage, indenture, contract, agreement, lease, license, permit or other instrument (collectivelyeach, a “Material ContractsContract”):) that:
(i) all Contracts contains covenants binding upon the Company or any of its subsidiaries or Affiliated Entities that require annual materially restrict the ability of the Company or any of its subsidiaries or Affiliated Entities to engage in any business or compete in any business or with any Person or operate in any geographic area, that in each case are material to the Company or any of its subsidiaries or Affiliated Entities taken as a whole;
(ii) other than with respect to any partnership that is wholly owned by the Company or any of its wholly owned subsidiaries or its Affiliated Entities, is a joint venture, partnership, limited liability company or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, joint venture or other similar arrangement, in each case, that is material to the business of the Company and its subsidiaries and Affiliated Entities, taken as a whole;
(iii) is an indenture, credit agreement, loan agreement, security agreement, guarantee, bond, mortgage or similar Contract pursuant to which any indebtedness of the Company or any of its subsidiaries or Affiliated Entities, in each case in excess of $10,000,000, is outstanding or secured, other than any such Contract between or among any of the Company and any of its wholly owned subsidiaries or its Affiliated Entities;
(iv) prohibits the payment of dividends or distributions in respect of the capital stock of the Company or any of its subsidiaries or Affiliated Entities or prohibits the pledging of the capital stock of the Company or any subsidiary or Affiliated Entity of the Company;
(v) is with the 10 largest suppliers and vendors of the Company (as determined by total payments in the prior fiscal year);
(vi) has resulted in payments to the Company or expenses incurred byany of its subsidiaries or Affiliated Entities of more than $4,000,000 in the aggregate for the prior fiscal year;
(vii) with respect to any acquisition and divestiture of assets or capital stock or other equity interests (2) pursuant to which the Company or any of its subsidiaries or Affiliated Entities has continuing indemnification, guarantee, “earn-out” or other contingent payment obligations;
(viii) is a settlement, conciliation, or annual payments similar Contract with any Governmental Entity pursuant to which the Company, any of its subsidiaries or income any of its Affiliated Entities has continuing obligations that materially restricts the operations of the Company, or such subsidiary or Affiliated Entity party thereto or involving the payment of more than $2,000,000 after the date of this Agreement;
(ix) is a collective bargaining or other Contract with any labor union, works council, or other labor organization;
(x) requires the Company or any of its subsidiaries or Affiliated Entities, directly or indirectly, to make any advance, loan, extension of credit or capital contribution to, the Company Group of $200,000 or more other investment in, any Person (other than standard purchase the Company or any of its wholly owned subsidiaries) in any such case which is in excess of $500,000;
(xi) (i) contains “most favored nation” pricing provisions from the Company or any of its subsidiaries or its Affiliated Entities in favor of or (ii) grants exclusive rights, rights of first refusal, rights of first negotiation or offer or similar rights to any customer where the annual payments to the Company or such subsidiary or Affiliated Entity are in excess of $5,000,000 for the prior fiscal year;
(xii) is between the Company or any of its subsidiaries or Affiliated Entities, on the one hand, and sale orders entered into any director or officer of the Company or any of its subsidiaries or Affiliated Entities or any Person beneficially owning five percent or more of the outstanding Shares, on the other hand, except for any Company Plan;
(xiii) requires or permits the Company or any of its subsidiaries or Affiliated Entities, or any successor to, or acquirer of the Company or any of its subsidiaries or Affiliated Entities, to make any payment to another person as a result of a change of control of such party or gives another Person a right to receive or elect to receive such a payment; or
(xiv) is a Contract relating to Intellectual Property that is material to the Company and its subsidiaries and Affiliated Entities taken as a whole, excluding (i) Contracts for commercially available, off-the-shelf software involving payments of less than $500,000 in the aggregate and (ii) non-exclusive licenses in the ordinary course of business consistent with past practices);
(ii. Each Contract required to be set forth in Section 3.8(a) all sales, advertising, agency, sales promotion, market research, marketing or similar Contracts;
(iii) each Contract with any current employee of the Company Group Disclosure Letter or filed (A) which has continuing obligations for payment of an annual compensation of at least $200,000, and or which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (Brequired to be filed) providing for severance or post-termination payments or benefits as an exhibit to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or SEC Reports as a result “material contract” pursuant to Item 601(b)(10) of a change of control of Regulation S-K under the Company;
Securities Act (iv) all Contracts creating a joint venturein each case, strategic allianceexcluding any Company Plan), limited liability company or partnership arrangement is referred to which the Company or any Subsidiary is a party;
(v) all Contracts relating to any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing);
(vi) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status herein as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council“Material Contract”.
(b) Each of the Material Contract Contracts is (i) a valid and binding agreementon the Company and each of its subsidiaries and Affiliated Entities party thereto and, (ii) to the knowledge of the Company, each other party thereto, and is in full force and effecteffect and enforceable in accordance with its terms, subject to the Bankruptcy and Equity Exception, except (iiii) is on arm’s length terms and was entered into to the extent that any Material Contract expires or terminates in the ordinary course of businessaccordance with its terms, and (ivii) enforceable by for such failures to be valid and against binding or to be in full force and effect that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (x) neither the Company Group and, to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case of this clause (iv), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, as knowledge of the date Company, any of this Agreement, its subsidiaries or Affiliated Entities has received written notice from any other party to a Material ContractContract that such other party intends to terminate, not renew, or renegotiate in any material respects the terms of any such Material Contract (except in accordance with the terms thereof) and (y) there is in material no breach or default (whether under any Material Contract by the Company or any of its subsidiaries or Affiliated Entities and no event or condition has occurred that constitutes, or, with or without the passage lapse of time or the giving of notice or both) under , would constitute, a default thereunder by the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights subsidiaries or obligations under Affiliated Entities or, to the knowledge of the Company, any other party thereto. Correct and complete copies of each Material Contract or granted any power of attorney with respect theretohave been made available to Parent.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause or result in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 1 contract
Contracts. (a) Schedule 4.14(a3.12(a) sets forth a true, complete and accurate list, as of the date of this Agreement, of all of lists the following Contracts as amended contracts and other agreements, written or oral, to date which the Sellers are currently in effect a party and which relate to the Business (collectively, the “Material Contracts”):): CERTAIN MATERIAL (INDICATED BY AN ASTERISK) HAS BEEN OMITTED FROM THIS DOCUMENT PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
(i) all Contracts that require annual payments any agreement (or expenses incurred bygroup of related agreements) for the purchase or sale of supplies, products or other personal property, or annual payments for the furnishing or income toreceipt of services, pursuant to which the Company Group Sellers have prospective monetary obligations in excess of $200,000 or more (other than standard [*****] and all open purchase and sale orders entered into in order commitments related to the ordinary course of business consistent with past practices)Acquired Assets;
(ii) all sales, advertising, agency, sales promotion, market research, marketing any agreement concerning a partnership or similar Contractsjoint venture;
(iii) each Contract with any current employee agreement (or group of related agreements) under which the Company Group (A) Sellers have created, incurred, assumed or guaranteed any Indebtedness or under which has continuing obligations for payment the Sellers have imposed a Lien on any of an annual compensation of at least $200,000its assets, and which is not terminable for any reason tangible or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Companyintangible;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company any agreement concerning confidentiality or partnership arrangement to which the Company or any Subsidiary is a partynoncompetition;
(v) all Contracts relating to any acquisitions or dispositions of assets of value in excess of $100,000 by agreement (A) for the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations employment of any party thereto ongoing);individual on a full-time, part-time, consulting or other basis or (B) providing severance benefits; and
(vi) all IP Contractsany sales representative, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business broker, distributor, advertising or industry, with any Person or in any geographic area;
(viii) all Contracts providing for guarantees, or where such Contract was entered into for the primary purpose of providing indemnification, other than Standard Contracts;
(ix) all Contracts with or pertaining to the Company Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or employee;
(x) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the aggregate that are valued at $250,000 or greater;
(xii) all Contracts relating to the voting or control of the equity interests of the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works councilsimilar agreement.
(b) Each Material Contract is (i) a valid legal, valid, binding, enforceable and binding agreement, (ii) in full force and effecteffect and will continue to be legal, (iii) is valid, binding, enforceable and in full force and effect on arm’s length identical terms and was entered into following the Closing in the ordinary course of businesseach case, and (iv) enforceable by and against the Company Group and, to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case of this clause (iv), subject to the Enforceability Exceptions. Neither None of the Company Group norSellers, or to the Company’s Sellers’ Knowledge, as of the date of this Agreementapplicable counterparty, is in default, violation or breach in any other party to a respect under any Material Contract, and to Sellers’ Knowledge, no event has occurred and is in material breach continuing that constitutes or, with notice or default (whether with or without the passage of time or the giving both, would constitute a default, violation or breach under any Material Contract. No Material Contract is subject to renegotiation by reason of an oral understanding or agreement. The Sellers have not received written or oral notice or both) under the terms of have any knowledge that any party to any Material Contract intends to cancel, terminate or not renew such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney whether in connection with respect thereto.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the transactions contemplated by this Agreement shall not cause hereby or result in an event otherwise. The Sellers have delivered to the Purchaser true and complete copies of default under any instruments or Contracts establishing or evidencing any Indebtednessall Material Contracts.
Appears in 1 contract
Contracts. (a) Schedule 4.14(aExcept for this Agreement and, as applicable, any Contract listed in Item 15 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2018, any Contract attached as an exhibit to any SEC filing by the Company between January 1, 2019 and the date of this Agreement, and any Contract set forth on Section 3.16(a) sets forth of the Company Disclosure Letter, neither the Company nor any Company Subsidiary is a true, complete and accurate list, party to or bound by any of the following as of the date of this Agreement, of all of the following Contracts as amended to date which are currently in effect (collectively, “Material Contracts”)::
(i) all Contracts that require annual payments or expenses incurred by, or annual payments or income to, any Contract which is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the Company Group of $200,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practicesSEC);
(ii) all sales, advertising, agency, sales promotion, market research, marketing any non-competition Contract or similar Contractsother Contract that purports to limit in any material respect either the type of business in which the Company or any of the Company Subsidiaries or any of their respective Affiliates may engage or the manner or geographic area in which any of them may so engage in any business or contains any material exclusivity provisions;
(iii) each any Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least $200,000entered into since January 1, and which is not terminable for any reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(iv) all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement 2019 pursuant to which the Company or any Company Subsidiary has completed or agreed to complete any acquisition or disposition of properties or assets that would have required the consent of Parent under Section 5.01(b)(iii) or (iv) if it had been completed after the date of this Agreement;
(iv) any Contract for the acquisition or disposition of properties or assets of the Company or the Company Subsidiaries pursuant to which the Company or any Company Subsidiary is a partysubject to continuing “earn-out” or similar deferred payment obligations that could reasonably be expected to result in payments by the Company or the Company Subsidiaries in an amount in excess of $1,000,000;
(v) all Contracts relating to any acquisitions or dispositions of assets of value in excess of $100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices and other than Contracts in which the applicable acquisition or disposition or transaction has been consummated and there are no material obligations of any party thereto ongoing)Collective Bargaining Agreement;
(vi) all IP Contractsany partnership, separately identifying all such IP Contracts under which limited liability company or joint venture agreement where the Company is obligated to pay royalties thereunder and all such IP Contracts under which or any Company Subsidiary, directly or indirectly, owns an equity interest in the Company is entitled to receive royalties thereunderpartnership, limited liability company or joint venture;
(vii) all Contracts limiting the freedom of the Company Group to compete in any line of business stockholders, investors rights, registration rights or industry, with any Person similar agreement or in any geographic areaarrangement;
(viii) all Contracts providing any Contract for guarantees, or where such Contract was entered into for the primary purpose capital expenditures in excess of providing indemnification, other than Standard Contracts$5,000,000;
(ix) all Contracts with or pertaining to any Company Lease requiring payments by the Company Group to which or any Affiliate Company Subsidiary in excess of the Company Group is a party, other than $1,000,000 during 2019 or any Contracts relating to such Affiliate’s status as a Company Securityholder or employeesubsequent calendar year;
(x) all Contracts relating any Contract (A) evidencing Indebtedness of the Company or any Company Subsidiary or pursuant to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of $200,000 per year;
(xi) all Contracts creating or otherwise relating to outstanding any Company Subsidiary has guaranteed any Indebtedness (other than intercompany Indebtedness) consumer credit or capital lease obligations incurred in the aggregate that are valued at $250,000 Ordinary Course of Business), or greater;
(xiiB) all Contracts relating to the voting or control of the equity interests of under which the Company Group or the election of directors of the Company Group (other than the organizational or constitutive documents of the Company Group);
(xiii) all Contracts not cancellable by the Company Group with no more than sixty (60) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of $200,000 per the terms of such contract;
(xiv) other than the Equity Incentive Plan and Contracts entered into in connection with the Equity Incentive Plan and subject to the Equity Incentive Plan, all Contracts under which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary AgreementCompany Subsidiary (1) has, directly or indirectly, made any loan or advance to any Person that remains outstanding (excluding any extensions of credit or delayed collection of trade payables in the Ordinary Course of Business) or (2) is obligated to make any capital contribution to, or the amount or value thereof will be calculated on the basis ofother investment in, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect, (iii) is on arm’s length terms and was entered into in the ordinary course of business, and (iv) enforceable by and against the Company Group and, to the Company’s Knowledge, each counterparty that is party thereto, subjectPerson, in the case of this clause subclause (iv)B) with outstanding obligations in excess of $1,000,000, other than any such Indebtedness, loans, advances, capital contributions or other investments solely between or among the Company and one or more wholly owned Company Subsidiaries; or
(xi) any Contract (other than any Contract of the type described in clauses (i) through (x) above) (A) under which the Company or any Company Subsidiary is reasonably expected to receive payments of more than $5,000,000 during 2019 or any subsequent calendar year (other than payments to the Enforceability Exceptions. Neither Company or any Company Subsidiary for advertising, marketing or promotion and excluding Contracts for the supply of newsprint by the Company Group nor, to or a Company Subsidiary where the Company’s Knowledgeor a Company Subsidiary’s net receipts under such Contract, after subtracting the cost to the Company and any applicable Company Subsidiary of the newsprint being supplied, does not exceed more than $5,000,000 during 2019 or would not reasonably be expected to exceed such amount during any subsequent calendar year) or (B) that by its express terms (1) requires the payment or is reasonably expected to require the payment by the Company or any Company Subsidiary of more than $2,500,000 during 2019 or any subsequent calendar year, or more than $5,000,000 in the aggregate during the remaining term of such Contract, and (2) cannot be terminated within twelve (12) months after giving notice of termination without resulting in any material cost, penalty or liability to the Company or any Company Subsidiary. Each Contract to which the Company or any Company Subsidiary is a party of the type described in clauses (i) through (xi) of this Section 3.16(a) is referred to in this Agreement as a “Company Material Contract”.
(b) The Company has delivered or made available to Parent correct and complete copies of each Company Material Contract and all amendments, modifications and side letters with respect thereto entered into prior to the date of this Agreement. Except to the extent that it has previously expired or been terminated by the Company or the applicable Company Subsidiary in accordance with its terms, each Company Material Contract is valid and in full force and effect in all material respects, and is enforceable against the Company or any Company Subsidiary party thereto (and to the Knowledge of the Company is enforceable against each other party thereto) in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or similar laws of general applicability relating to a Material Contractor affecting creditors’ rights generally, is in material breach or default (whether with or without the passage by general principles of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect theretoequity.
(c) The Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Group Material Adverse Effect, (i) neither the Company nor any Company Subsidiary is in compliance in all material respects with all covenantsand, including all financial covenantsto the Knowledge of the Company, no other party is, in all notesbreach or violation of, indenturesor in default under, bonds any Company Material Contract and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing (ii) to the Knowledge of the transactions contemplated by this Agreement shall not cause or Company, no event has occurred which would result in an event a breach or violation of, or a default under, any Company Material Contract (in each case, with or without notice or lapse of default under any instruments time or Contracts establishing or evidencing any Indebtednessboth).
Appears in 1 contract
Sources: Merger Agreement (Gannett Co., Inc.)