Contracts. (a) For purposes of this Agreement, each of the following shall constitute a “Material Contract”: (i) each Purchased Contract relating to the employment (whether on a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000; (ii) except to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements); (iii) each Purchased Contract creating or relating to any partnership, limited liability company or joint venture or similar venture or arrangement; (iv) each Purchased Contract with any customer or production supplier that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000; (v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted; (vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum; (viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii); (ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing); (x) any Contract, the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business; (xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and (xii) each Purchased Contract set forth on Schedule 4.11(a)(xii). (b) Except as set forth on Schedule 4.11(b) and other than with respect to the 787 Supply Agreement: (i) each Material Contract is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller and, to Seller’s Knowledge, of the other party or parties thereto and is enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally. (c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both). (d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract. (e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 3 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Vought Aircraft Industries Inc), Asset Purchase Agreement (Boeing Co)
Contracts. (a) For purposes Section 2.12(a) of this Agreementthe Disclosure Schedule sets forth a true, each correct, and complete list of the following shall constitute Contracts (each such Contract set forth or required to be set forth on such Schedule, a “Material Contract”:) to which Seller is a party or by which Seller or its assets or properties are bound, in each case relating to the Business or Purchased Assets (provided that Contacts entered into following the date hereof with Purchaser’s consent pursuant to Section 4.13(b) need not be scheduled):
(i) each Purchased Contract all Contracts relating to the employment (whether on a full-time, part-time, consulting capital expenditures or other basis) purchases of any Employee of the Businessmaterials, and any “stay pay,” terminationsupplies, change of control maintenance, equipment, revenue-earning property, or other Contract pursuant to which Seller is assets or may become obligated to make any severanceproperties or services (other than purchase orders for inventory or supplies in the Ordinary Course) in excess of $100,000 individually, termination or relocation payment to any current or former Employee of $500,000 in the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000aggregate;
(ii) except to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in all Contracts involving a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business loan (other than nondisclosure agreementsaccounts receivable owing from trade debtors in the Ordinary Course), advance to, or investment in any Person, or any Contract relating to the making of any such loan, advance, or investment;
(iii) each Purchased Contract creating all Contracts involving Indebtedness of Seller or relating to granting or evidencing a Lien on any partnership, limited liability company property or joint venture or similar venture or arrangementasset of Seller (other than Permitted Liens);
(iv) each Purchased Contract with any customer or production supplier that involvesmanagement service, consulting, financial advisory, or would reasonably be expected to involve (assuming delivery any other similar type of eighty-four (84) shipsets per year), the payment Contract and all Contracts with investment or expenditure in excess of $2,000,000commercial banks;
(v) each Purchased any Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involvingwhich includes any restrictive covenant, license, non-competition, non-solicitation, most favored nations, exclusivity, or reasonably anticipated other item which restricts Seller’s (or its successor’s) rights and ability to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar yearoperate;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business all Contracts (other than nondisclosure agreements); or (Bthis Agreement and the other Transaction Documents) Buyer to own between Seller and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) , or (B) any current or former officer or manager of Seller;
(vii) all Contracts (including letters of intent) (A) involving the Persons identified on Schedule 4.11(a)(viii)future disposition or acquisition of assets or properties involving consideration of more than $100,000 individually, or $500,000 in the aggregate, or any merger, consolidation or similar business combination transaction, whether or not enforceable, or (B) relating to the acquisition by Seller of any operating business or the equity securities or interests of any other Person;
(viii) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, co-packaging, joint development, or similar arrangement;
(ix) each noteall Contracts involving any resolution or settlement of any actual or threatened litigation, debenturearbitration, bond, indenture, guarantee, loan, credit or financing agreement, instrument claim or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances dispute that have any continuing effect on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing)Seller;
(x) any Contract, the primary subject matter of which is all Contracts involving a confidentiality, nondisclosure standstill, or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Businessarrangement;
(xi) each Purchased Contract which createsall Contracts (A) for the employment of any officer, individual employee, or may createother Person on a full-time or consulting basis who cannot be dismissed immediately without notice and without liability or obligation of any kind whatsoever in excess of $25,000 individually or $100,000 in the aggregate, an Encumbrance on (B) requiring severance payments or payments upon a change in control, and (C) for deferred compensation or severance;
(xii) all collective bargaining agreements or other agreements with any Purchased Asset in labor union;
(xiii) all Contracts with any Governmental Body;
(xiv) all Contracts that involve the performance of services, or delivery of goods or materials, during the twelve (12) month period immediately prior to the date of this Agreement of an amount or with a value in excess of $50,000100,000, including all master service agreements (regardless of dollar thresholds);
(xv) all Contracts where Seller agrees to indemnify any Person with respect to claims of infringement of any Intellectual Property other than customers under Seller’s standard form agreement;
(xvi) all powers of attorney granted to any Person; and
(xiixvii) each Purchased Contract set forth all Contracts with customers and suppliers disclosed or required to be disclosed on Schedule 4.11(a)(xii)Section 2.21 of the Disclosure Schedule.
(b) Except as set forth on Schedule 4.11(b) True, correct, and other than with respect complete copies of the Material Contracts have previously been provided to Purchaser by Seller. Seller is not in Breach, and no event has occurred, or condition or circumstance exists, which could reasonably be expected to constitute a Breach of any Included Contract by Seller or, to the 787 Supply Agreement: (i) each Material Contract Knowledge of Seller, by any other party thereto. Each of the Included Contracts is in full force and effect and (ii) each Material Contract constitutes a legaleffect, valid, binding is valid and enforceable obligation in accordance with its terms and, to the Knowledge of Seller andSeller, is not subject to any claims, charges, setoffs or defenses. There are no disputes pending or, to Seller’s Knowledge, of the other party or parties thereto threatened, under any Included Contract, and is enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has not violated asserted or breached in threatened to assert any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach claim under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Included Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Ranger Energy Services, Inc.), Asset Purchase Agreement (Ranger Energy Services, Inc.), Asset Purchase Agreement (Ranger Energy Services, Inc.)
Contracts. (a) For purposes Section 2.14 of the Company Disclosure Schedule lists the following agreements (written or oral) to which the Company is a party as of the date of this Agreement, each of Agreement (other than the following shall constitute a “Material Contract”:Transaction Documentation (as hereinafter defined)):
(i) each Purchased Contract relating any agreement (or group of related agreements) for the lease of personal property from or to third parties (A) which provides for lease payments in excess of $25,000 per annum or (B) which has a remaining term longer than 12 months and is not cancellable without penalty by the employment Company on sixty (whether on a full-time, part-time, consulting 60) days or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000less prior written notice;
(ii) except any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, is not cancellable without penalty by the Company on sixty (60) days or less prior written notice and involves more than the sum of $25,000, or (B) in which the Company has granted manufacturing rights, “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in any products or territory or has agreed to purchase a material manner minimum quantity of goods or primarily services or has agreed to the acquisition, use, transfer, development, ownership, sharing purchase goods or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)services exclusively from a certain party;
(iii) each Purchased Contract creating or relating any agreement which, to any partnershipthe knowledge of the Stockholders and the Company, limited liability company or establishes a material joint venture or similar venture or arrangementlegal partnership;
(iv) each Purchased Contract with any customer agreement (or production supplier that involvesgroup of related agreements) under which it has created, incurred, assumed or would reasonably be expected to involve guaranteed (assuming delivery or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $25,000 or under which it has imposed (or may impose) a Security Interest on any of eighty-four (84) shipsets per year)its assets, the payment tangible or expenditure in excess of $2,000,000intangible;
(v) each Purchased Contract not with customers or production suppliers any agreement that may not be terminated (without penalty) by Seller within thirty (30) days after purports to limit in any material respect the delivery right of a termination notice by Seller and contemplating or involvingthe Company to engage in any line of business, or reasonably anticipated to involve, (A) the payment compete with any person or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate operate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar yeargeographical location;
(vi) each Seller Contract imposing any materialemployment agreement, explicit restriction on executive agreement (including without limitation the right Hutz Agreement) or ability consulting agreement which provides for payments in excess of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business $50,000 per annum (other than nondisclosure agreementsemployment or consulting agreements terminable on less than thirty (30) days’ notice); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract any agreement involving any officer, director or stockholder of the Company or any affiliate (as defined in Rule 12b-2 under the Exchange Act) thereof (an “Affiliate”) (other than stock subscription, stock option, restricted stock, warrant or stock purchase agreements the forms of which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annumhave been made available to Buyer);
(viii) each Purchased Contract with any agreement or commitment for capital expenditures in excess of $25,000, for a single project (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of it being represented and warranted that the Persons identified on Schedule 4.11(a)(viiiliability under all undisclosed agreements and commitments for capital expenditures does not exceed $100,000 in the aggregate for all projects);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit any agreement under which the consequences of a default or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing)termination would reasonably be expected to have a Company Material Adverse Effect;
(x) any Contractagreement which contains any provisions requiring the Company to indemnify any other party thereto (excluding indemnities contained in agreements for the purchase, sale or license of products entered into in the primary subject matter Ordinary Course of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business);
(xi) each Purchased Contract which createsany agreement, or may createother than as contemplated by this Agreement, an Encumbrance on any Purchased Asset in an amount or with a value in excess relating to the future sales of $50,000securities of the Company; and
(xii) any other agreement (or group of related agreements) (A) under which the Company is obligated to make payments or incur costs in excess of $25,000 in any year or (B) not entered into in the Ordinary Course of Business, in each Purchased Contract set forth on Schedule 4.11(a)(xiicase which is not otherwise described in clauses (i) through (xi).
(b) Except The Stockholders have delivered or made available to the Buyer a complete and accurate copy of each agreement listed in Section 2.14 of the Company Disclosure Schedule. With respect to each agreement so listed, and except as set forth on Schedule 4.11(b) and other than with respect to in Section 2.14 of the 787 Supply AgreementCompany Disclosure Schedule: (i) each Material Contract the agreement is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller andthe Company and in full force and effect, except as such enforceability may be limited under applicable bankruptcy, insolvency and similar laws, rules or regulations affecting creditors’ rights and remedies generally and to Seller’s Knowledgegeneral principles of equity whether applied in a court of law or a court of equity; (ii) the agreement will continue to be legal, valid, binding and enforceable obligation of the other party Company, except as such enforceability may be limited under applicable bankruptcy, insolvency and similar laws, rules or parties thereto regulations affecting creditors’ rights and is enforceable remedies generally and to general principles of equity, whether applied in a court of law or a court of equity and will be in full force and effect immediately following the Closing in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except the terms thereof as set forth on Schedule 4.11(c) and other than with respect in effect immediately prior to the 787 Supply Agreement: Closing; and (iiii) Seller has not violated neither the Company nor, to the knowledge of the Stockholders and the Company, any other party, is in breach or breached in any material respect violation of, or committed any material default under, any Material Contract (in each casesuch agreement, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, is pending or, to the knowledge of the Stockholders and no factthe Company, circumstance or condition existsis threatened, that (which, after the giving of notice, with or without notice or lapse of time time, or both) has (i) resulted in otherwise, would constitute a material breach or default by the Company or, to the knowledge of the Stockholders and the Company, any other party under such contract, except for any breach, violation or breach of any provision of any default that has not had and would not reasonably be anticipated to have a Company Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material ContractAdverse Effect.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 3 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement, Asset Purchase Agreement (Ds Healthcare Group, Inc.)
Contracts. (a) For purposes of this Agreement, each of the following shall constitute a “Material Contract”:
(i) each Purchased Contract relating to the employment (whether on a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000;
(ii) except to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements);
(iii) each Purchased Contract creating or relating to any partnership, limited liability company or joint venture or similar venture or arrangement;
(iv) each Purchased Contract with any customer or production supplier that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing);
(x) any Contract, the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii).
(b) Except as set forth on Schedule 4.11(b) and other than with respect to the 787 Supply Agreement: (i) each Material Contract is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller and, to Seller’s Knowledge, of the other party or parties thereto and is enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as As of the date of this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound by any of the following Contracts (excluding any Benefit Plan): (i) any Contract with respect to indebtedness for borrowed money, any financial guaranty thereof or the mortgaging pledging or otherwise placing a Lien on any of their assets, in each case, in excess of $10,000,000, other than indebtedness between and among the Company and its wholly owned Subsidiaries; (ii) any Contract is not terminable at will by the Company without penalty that purports to prohibit the Company or any of its Subsidiaries from competing in any material respect in any business line, with any Person or in any geographic area; (iii) any Contract that involves any exchange-traded, over-the-counter or other swap, cap, floor, collar, futures contract, forward contract, option or any other derivative financial instrument with a fair market value in excess of $10,000,000; (iv) any Contract that involved expenditures or guaranteed receipts by the Company or any of its Subsidiaries of more than $10,000,000 in 2024 or by its terms requires expenditures or guaranteed receipts by the Company or any of its Subsidiaries of more than $10,000,000 in 2025; (v) any Contract that involved, since January 1, 2024, the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets composing a business or capital stock or other equity interests of another Person (other than acquisitions or dispositions of assets, capital stock and other equity interests by and among the Company and its Subsidiaries) in an amount in excess of $10,000,000; (vi) any Contract (other than this Agreement) that is not terminable on ninety (90) days or less notice and by its terms prohibits the payment of dividends or other distributions by the Company or any of its Subsidiaries; (vii) any joint venture or partnership Contract involving amounts in excess of $10,000,000 that is material to the Company and its Subsidiaries, taken as a whole; (viii) any Company Real Property Lease material to the operation of the Company’s and its Subsidiaries’ business, taken as a whole; (ix) any Contract that contains a put, call, right of first refusal or right of first negotiation, right of first offer, redemption, repurchase or similar right that is material to the Company and its Subsidiaries, taken as a whole, pursuant to which the Company or any of its Subsidiaries would be required to, or have the option or right to, purchase or sell, as applicable, any equity interests, businesses, lines of business, divisions, joint ventures, partnerships or other assets of any Person; (x) any settlement agreement or similar Contract with a Governmental Entity or order to which the Company or any of its Subsidiaries is a party involving future performance by the Company or any of its Subsidiaries in any such case that is material to the Company and its Subsidiaries, taken as a whole; (xi) any Contract pursuant to which the Company or any of its Subsidiaries grants to a third party or receives from a third party a license or any other right with respect to any Material Intellectual Property (other than (A) Contracts pursuant to which the annual fees are less than $10,000,000, (B) non-exclusive licenses granted to service providers in connection with the provision of services to the Company or any of its Subsidiaries, or (C) Contracts with employees and contractors on forms that have been made available to Parent pursuant to which such individual assigns rights in Intellectual Property to the Company or any of its Subsidiaries); (xii) any Contract that (A) grants to any third Person any material exclusive license or supply or distribution agreement or other similar material exclusive rights or (B) grants to any third Person any “most favored nation” rights and is expected to result in aggregate future payments to the Company or any of its Subsidiaries, in each case, in excess of $10,000,000 per annum; (xiii) any Contract involving the performance of services or delivery of goods, products or developmental, consulting or other services commitments by the Company or any of its Subsidiaries as to which any Major Customer is a counterparty (the “Customer Contracts”); (xiv) any Contract involving the performance of services or delivery of goods, materials, supplies or equipment or developmental, consulting or other services commitments to the Company or any of its Subsidiaries, or the payment therefor by the Company or any of its Subsidiaries as to which any Major Supplier is a counterparty (the “Supplier Contracts”); (xv) any indemnification agreement between any Indemnified Party, on one hand, and the Company or any of its Subsidiaries, on the other hand; and (xvi) any Contract deemed to be a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) (all contracts of the type described in this Section 3.1(p)(i), together with all amendments, extensions, modifications, guarantees and supplements thereto, being referred to in this Agreement as “Company Key Contracts”).
(ii) Except as would not be reasonably expected to have, individually or in the aggregate, a Company Material Adverse Effect, (A) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any other party, is in material breach of or default under the terms of any Company Key Contract; (B) each Company Key Contract is a valid and binding obligation of the Company or its Subsidiaries which is party thereto and, to the Knowledge of the Company, of each other party thereto, and is in full force and effect, except that such enforcement may be subject to the Bankruptcy and Equity Exception; and (C) neither the Company nor any of its Subsidiaries has received any written, or, to the Knowledge of the Company, oral, notice of termination or breach with respect to, and, to the Knowledge of the Company, no party has threatened to terminate, any Company Key Contract. A trueExcept for any Company Key Contracts filed without redaction as exhibits to the Company Reports, correct and complete a copy of each such written Material Company Key Contract (including all amendments thereto) has been made available to BuyerParent.
Appears in 3 contracts
Sources: Merger Agreement (QXO, Inc.), Merger Agreement (Beacon Roofing Supply Inc), Merger Agreement (QXO, Inc.)
Contracts. (a) For purposes Section 2.13 of the Disclosure Schedule lists the following agreements (written or oral) to which the Company or any Subsidiary is a party as of the date of this Agreement, each of the following shall constitute a “Material Contract”:
(i) each Purchased Contract relating any agreement (or group of related agreements) for the lease of personal property from or to the employment (whether on third parties providing for lease payments in excess of $25,000 per annum or having a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more remaining term longer than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,00012 months;
(ii) except any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, (B) which involves more than the sum of $25,000, or (C) in which the Company or any Subsidiary has granted manufacturing rights, “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in any products or territory or has agreed to purchase a material manner minimum quantity of goods or primarily services or has agreed to the acquisition, use, transfer, development, ownership, sharing purchase goods or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)services exclusively from a certain party;
(iii) each Purchased Contract creating or relating any agreement which, to any partnershipthe knowledge of the Company, limited liability company establishes a partnership or joint venture or similar venture or arrangementventure;
(iv) each Purchased Contract with any customer agreement (or production supplier that involvesgroup of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $25,000 or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or noncompetition;
(vi) any employment or consulting agreement;
(vii) any agreement involving any officer, director or stockholder of the Company or any affiliate, as defined in Rule 12b-2 under the Exchange Act (an “Affiliate”), thereof;
(viii) any agreement under which the consequences of a default or termination would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of have a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii)Company Material Adverse Effect;
(ix) each noteany agreement which contains any provisions requiring the Company or any Subsidiary to indemnify any other party thereto (excluding indemnities contained in agreements for the purchase, debenture, bond, indenture, guarantee, loan, credit sale or financing agreement, instrument or other evidence of, or Contract for, Indebtedness license of Seller secured by or providing Encumbrances on products entered into in the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financingOrdinary Course of Business);; and
(x) any Contract, other agreement (or group of related agreements) either involving more than $25,000 or not entered into in the primary subject matter Ordinary Course of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii).
(b) Except The Company has delivered or made available to the Parent a complete and accurate copy of each agreement listed in Section 2.13 of the Disclosure Schedule. With respect to each agreement so listed, and except as set forth on Schedule 4.11(b) and other than with respect to in Section 2.13 of the 787 Supply AgreementDisclosure Schedule: (i) each Material Contract the agreement is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller andand in full force and effect; (ii) the agreement will continue to be legal, to Seller’s Knowledgevalid, of binding and enforceable and in full force and effect immediately following the other party or parties thereto and is enforceable Closing in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except the terms thereof as set forth on Schedule 4.11(c) and other than with respect in effect immediately prior to the 787 Supply Agreement: Closing; and (iiii) Seller has not violated neither the Company nor any Subsidiary nor, to the knowledge of the Company, any other party, is in breach or breached in any material respect violation of, or committed any material default under, any Material Contract (in each casesuch agreement, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no factis pending or, circumstance or condition existsto the knowledge of the Company, that (is threatened, which, after the giving of notice, with or without notice or lapse of time time, or both) has (i) resulted in otherwise, would constitute a material violation breach or breach default by the Company or any Subsidiary or, to the knowledge of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respectCompany, any Material Contractother party under such contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 3 contracts
Sources: Merger Agreement (Solar Energy Initiatives, Inc.), Merger Agreement (Critical Digital Data, Inc.), Merger Agreement (Foothills Resources Inc)
Contracts. (a) For purposes Section 2.14 of the Company Disclosure Schedule lists the following agreements (whether written or oral) to which the Company is a party as of the date of this Agreement, each of Agreement (other than the following shall constitute a “Material Contract”:Transaction Documentation):
(i) each Purchased Contract relating any agreement (or group of related agreements) for the lease of personal property from or to third parties (A) which provides for lease payments in excess of $25,000 per annum or (B) which has a remaining term longer than 12 months and is not cancellable without penalty by the employment Company on sixty (whether on a full-time, part-time, consulting 60) days or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000less prior written notice;
(ii) except any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, is not cancellable without penalty by the Company on sixty (60) days or less prior written notice and involves more than the sum of $25,000 per annum, or (B) in which the Company has granted manufacturing rights, “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in any products or territory or has agreed to purchase goods or services exclusively from a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)certain party;
(iii) each Purchased Contract creating or relating any agreement which, to any partnershipthe knowledge of the Company, limited liability company or establishes a material joint venture or similar venture or arrangementlegal partnership;
(iv) each Purchased Contract with any customer agreement (or production supplier that involvesgroup of related agreements) under which it has created, incurred, assumed or would reasonably be expected to involve guaranteed (assuming delivery or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $25,000 or under which it has imposed (or may impose) a Security Interest on any of eighty-four (84) shipsets per year)its assets, the payment tangible or expenditure in excess of $2,000,000intangible;
(v) each Purchased Contract not with customers or production suppliers any agreement that may not be terminated (without penalty) by Seller within thirty (30) days after purports to limit in any material respect the delivery right of a termination notice by Seller and contemplating or involvingthe Company to engage in any line of business, or reasonably anticipated to involve, (A) the payment compete with any person or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate operate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar yeargeographical location;
(vi) each Seller Contract imposing any material, explicit restriction on the right employment agreement or ability consulting agreement which provides for payments in excess of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business $50,000 per annum (other than nondisclosure agreementsemployment or consulting agreements terminable on less than thirty (30) days’ notice); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract any agreement involving any officer, director or stockholder of the Company or any affiliate (as defined in Rule 12b-2 under the Exchange Act) thereof (an “Affiliate”) (other than stock subscription, stock option, restricted stock, warrant or stock purchase agreements the forms of which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annumhave been made available to Parent);
(viii) each Purchased Contract with any agreement or commitment for capital expenditures in excess of $25,000, for a single project (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of it being represented and warranted that the Persons identified on Schedule 4.11(a)(viiiliability under all undisclosed agreements and commitments for capital expenditures does not exceed $100,000 in the aggregate for all projects);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit any agreement under which the consequences of a default or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing)termination would reasonably be expected to have a Company Material Adverse Effect;
(x) any Contractagreement which contains any provisions requiring the Company or to indemnify any other party thereto (excluding indemnities contained in agreements for the purchase, sale or license of products entered into in the primary subject matter Ordinary Course of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business);
(xi) each Purchased Contract which createsany agreement, or may createother than as contemplated by this Agreement, an Encumbrance on any Purchased Asset in an amount or with a value in excess relating to the future sales of $50,000securities of the Company; and
(xii) any other agreement (or group of related agreements) (A) under which the Company is obligated to make payments or incur costs in excess of $25,000 in any year or (B) not entered into in the Ordinary Course of Business, in each Purchased Contract set forth on Schedule 4.11(a)(xiicase which is not otherwise described in clauses (i) through (xi).
(b) Except The Company has delivered or made available to the Parent a complete and accurate copy of each agreement listed in Section 2.14 of the Company Disclosure Schedule. With respect to each agreement so listed, and except as set forth on Schedule 4.11(b) and other than with respect to in Section 2.14 of the 787 Supply AgreementCompany Disclosure Schedule: (i) each Material Contract the agreement is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller andthe Company and in full force and effect, except as such enforceability may be limited under applicable bankruptcy, insolvency and similar laws, rules or regulations affecting creditors’ rights and remedies generally and to Seller’s Knowledgegeneral principles of equity whether applied in a court of law or a court of equity; (ii) the agreement will not, as a result of the other party execution and delivery by the Company of this Agreement or parties thereto the Transaction Documentation, or the consummation by the Company of the transactions contemplated hereby or thereby, cease to be a legal, valid, binding and is enforceable obligation of the Company, except as such enforceability may be limited under applicable bankruptcy, insolvency and similar laws, rules or regulations affecting creditors’ rights and remedies generally and to general principles of equity, whether applied in a court of law or a court of equity and will, or to be in full force and effect in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except the terms thereof as set forth on Schedule 4.11(c) and other than with respect in effect immediately prior to the 787 Supply Agreement: Closing; and (iiii) Seller has not violated neither the Company nor, to the knowledge of the Company, any other party, is in breach or breached in any material respect violation of, or committed any material default under, any Material Contract (in each casesuch agreement, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no factis pending or, circumstance or condition existsto the knowledge of the Company, that (is threatened, which, after the giving of notice, with or without notice or lapse of time time, or both) has (i) resulted in otherwise, would constitute a material breach or default by the Company or, to the knowledge of the Company, any other party under such contract, except for any breach, violation or breach of any provision of any default that has not had and would not reasonably be anticipated to have a Company Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material ContractAdverse Effect.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 3 contracts
Sources: Share Exchange Agreement (Neonc Technologies Holdings, Inc.), Share Exchange Agreement (Neonc Technologies Holdings, Inc.), Share Exchange Agreement (Neonc Technologies Holdings, Inc.)
Contracts. (a) For purposes Section 3.19(a) of this Agreement, the Disclosure Schedule contains a true and complete list of each of the following shall constitute written or oral contracts, agreements or other arrangements (each, a “"Material Contract”:") to which the Company is a party or by which any of its Company Assets and Properties are bound (and, to the extent oral, accurately describes the terms of such contracts, agreements and arrangements):
(i) each Purchased Contract relating to all collective bargaining or similar labor agreements;
(ii) all contracts for the employment (whether of any officer, employee or other person or entity on a full-full time, part-part time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000;
(ii) except to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements);
(iii) each Purchased Contract creating 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 partnership, limited liability company material asset or joint venture or similar venture or arrangementmaterial group of assets of the Company;
(iv) each Purchased Contract with all guarantees of any customer or production supplier that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000obligation;
(v) each Purchased Contract not all leases or agreements under which the Company is lessee or lessor of, or holds, or operates, any property, real or personal, owned by any other party;
(vi) all commitments, contracts, sales contracts, purchase orders, mortgage agreements or groups of related agreements with customers the same party or production suppliers that any group or affiliated parties which require or may in the future require payment of any consideration by the Company of an amount in excess of $25,000 and which cannot be terminated (without penalty) by Seller within thirty (30) days after the delivery giving notice of a termination notice by Seller and contemplating without resulting in any cost or involving, or reasonably anticipated to involve, (A) the payment or delivery by or penalty to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar yearCompany;
(vivii) each Seller Contract imposing any materialall license agreements, explicit restriction on the right distribution agreements or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; agreements involving any Company Intellectual Property;
(2viii) sell all subscription or registration rights agreements or any product other agreements related to the equity ownership of the Company;
(ix) all contracts or other Asset, or perform commitments that in any services way restrict the Company from carrying on its Business anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;and
(viix) each Purchased Contract under which Seller all other contracts and agreements that (A) leases involve the payment or subleases potential payment, pursuant to the terms of any real property such contract or (B) leases agreement, by the Company or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any the other Person involving lease payments or other consideration party of an amount in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or 25,000 and (B) cannot be terminated within thirty (30) days after giving notice of termination without resulting in any of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit cost or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing);
(x) any Contract, the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect penalty to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii)Company.
(b) Except as set forth on Each contract, agreement or other arrangement disclosed in Section 3.19(a) of the Disclosure Schedule 4.11(b) and other than with respect to the 787 Supply Agreement: (i) each Material Contract is in full force and effect and (ii) each Material Contract constitutes a legal, validvalid and binding agreement, binding and enforceable obligation of Seller and, to Seller’s Knowledge, of by the other party or parties thereto and is enforceable Company in accordance with its terms, subject only except as to the effect, if any, of (a) applicable bankruptcy, insolvency, reorganization and moratorium Laws bankruptcy and other Laws similar laws affecting the rights of general application affecting enforcement creditors generally, and (b) rules of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(c) law and equity governing specific performance, injunctive relief and other than with respect to the 787 Supply Agreement: (i) Seller equitable remedies. The Company has performed all of its required material obligations under, and is not violated materially in violation or breached in any material respect breach of or committed any material default under, any Material Contract (in each casesuch contract, with agreement or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to arrangement. To the Knowledge of SellerAxys and the Company, no the other Person has violated parties to any such contract, agreement or breached arrangement are not in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material or default or exercise any remedy for breach under any Material Contract; (iii) given any Person such contract, agreement or arrangement. None of the unilateral right present employees, officers, directors or shareholders of the Company is, and none of the former employees, officers or directors of the Company while providing services for the Company was, a party to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including written contract or agreement prohibiting any oral of them from freely competing with other parties or unwritten amendments thereto), engaging in each case the Company's Business as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyernow operated.
Appears in 3 contracts
Sources: Merger Agreement (Discovery Partners International Inc), Merger Agreement (Axys Pharmecueticals Inc), Merger Agreement (Discovery Partners International Inc)
Contracts. (a) For purposes of this Agreement, each Section 3.21(a) of the following shall constitute Company Disclosure Schedule contains a complete and accurate list of each Material Contract, true and complete copies of which have been provided or made available to Parent, as well as a summary of all oral Material Contracts. “Material Contract”:
” means any Contract (i) each Purchased Contract relating that would qualify as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act; (ii) containing 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, could materially restrict the ability of the Surviving Corporation) to compete in any business or with any Person or in any geographic area that is material to the employment (whether on Company and its Subsidiaries, taken as a full-timewhole, part-time, consulting or other basis) of any Employee as of the Businessdate hereof, and except for any “stay pay,” terminationsuch Contract that may be canceled without penalty by the Company or any of its Subsidiaries upon notice of 90 days or less; (iii) with respect to a material joint venture or material partnership agreement (excluding information technology Contracts); (iv) that would prevent, change of control materially delay or materially impede the Company’s ability to consummate the Merger or the other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation transactions contemplated by this Agreement; (v) that calls for the payment to any current or former Employee over the remaining life of the Business who earns or earned an annual base salary Contract of more than $60,000 or 100,000 in the aggregate; (vi) that continues for which a period of more than twelve (12) months from the cost of such severance, termination or relocation payment would exceed $30,000;
(ii) except to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements);
(iii) each Purchased Contract creating or relating to any partnership, limited liability company or joint venture or similar venture or arrangement;
(iv) each Purchased Contract with any customer or production supplier that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure Closing Date and involves payments in excess of $2,000,000;
75,000; (vvii) that is an employment agreement containing severance or termination pay Liabilities; (viii) that is a contract under which the Company or any of its Subsidiaries has advanced or loaned money to any other Person (other than the Company’s agreement to reimburse employees for normal and customary moving expenses, in each Purchased Contract not case in amounts of less than $25,000); (ix) that is an agreement or indenture relating to Indebtedness of the Company or any of its Subsidiaries; (x) that is a lease or agreement under which the Company or any of its Subsidiaries is lessee of or holds or operates (aa) any real property or (bb) any personal property with customers an initial cost in excess of $50,000 as of the initial date of the lease (as if such property had been purchased on the first day of such lease), which property is owned by any Person other than the Company or production suppliers any of its Subsidiaries; (xi) that may not be terminated is an assignment, license, indemnification, right to use, or agreement with respect to any intangible property (without penaltyincluding any Intellectual Property) by Seller within the Company or any of its Subsidiaries (except for any such agreement relating to commercially available, unmodified, off-the-shelf software with a license fee of less than $50,000); (xii) that is a material warranty agreement with respect to its services rendered or its products sold; (xiii) that is an agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights); (xiv) that is a sales, distribution, supply or franchise agreement; (xv) that is a contract regarding voting, transfer or other arrangements related to the Company’s or any of its Subsidiaries’ capital stock or warrants, options or other rights to acquire any of the Company’s or any of its Subsidiaries’ capital stock; (xvi) that involves payments in excess of $75,000 and is not cancelable by the Company or any of its Subsidiaries with notice of less than thirty (30) days after and without Liability, penalty or premium; (xvii) that is a settlement, conciliation or similar agreement requiring a payment by the delivery of a termination notice by Seller and contemplating Company or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value its Subsidiaries in excess of $250,000 in 50,000 or which provides for limitations on the aggregate in conduct by, or requires conduct by, the Company or any calendar yearof its Subsidiaries; (Bxviii) the performance by or for the Business that is a letter of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Personcredit; (2xix) sell any product or other Asset, or perform any services anywhere in the worldthat is a collective bargaining agreement; (3xx) acquire any product or other Asset or any services from any other Personthat is a settlement, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing);
(x) any Contract, the primary subject matter of which is confidentiality, nondisclosure conciliation or similar agreement with respect to confidentiality arrangements executed by any Governmental Entity or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to outstanding obligations would exist after the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii).
(b) Except as set forth on Schedule 4.11(b) and other than with respect to the 787 Supply Agreement: (i) each Material Contract is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller and, to Seller’s Knowledge, of the other party or parties thereto and is enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material ContractClosing; or (ivxxi) give that is material to the Company’s or any Person the right to cancel, terminate or modify, in any material respect, any Material Contractof its Subsidiaries’ operations and business prospects.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 3 contracts
Sources: Merger Agreement (Gordmans Stores, Inc.), Merger Agreement (Gordmans Stores, Inc.), Merger Agreement (Gordmans Stores, Inc.)
Contracts. (a) For purposes Section 2.14 of the Company Disclosure Schedule lists the following agreements (written or oral) to which the Company or WRG is a party as of the date of this Agreement, each of Agreement (other than the following shall constitute a “Material Contract”:Transaction Documents (as hereinafter defined)):
(i) each Purchased Contract relating any agreement (or group of related agreements) for the lease of personal property from or to third parties (A) which provides for lease payments in excess of $25,000 per annum or (B) which has a remaining term longer than 12 months and is not cancellable without penalty by the employment Company on sixty (whether on a full-time, part-time, consulting 60) days or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000less prior written notice;
(ii) except any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, is not cancellable without penalty by the Company on sixty (60) days or less prior written notice and involves more than the sum of $25,000, or (B) in which the Company has granted manufacturing rights, “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in any products or territory or has agreed to purchase a material manner minimum quantity of goods or primarily services or has agreed to the acquisition, use, transfer, development, ownership, sharing purchase goods or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)services exclusively from a certain party;
(iii) each Purchased Contract creating or relating any agreement which, to any partnershipthe knowledge of the Company, limited liability company or establishes a material joint venture or similar venture or arrangementlegal partnership;
(iv) each Purchased Contract with any customer agreement (or production supplier that involvesgroup of related agreements) under which it has created, incurred, assumed or would reasonably be expected to involve guaranteed (assuming delivery or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $25,000 or under which it has imposed (or may impose) a Security Interest on any of eighty-four (84) shipsets per year)its assets, the payment tangible or expenditure in excess of $2,000,000intangible;
(v) each Purchased Contract not with customers or production suppliers any agreement that may not be terminated (without penalty) by Seller within thirty (30) days after purports to limit in any material respect the delivery right of a termination notice by Seller and contemplating or involvingthe Company to engage in any line of business, or reasonably anticipated to involve, (A) the payment compete with any person or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate operate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar yeargeographical location;
(vi) each Seller Contract imposing any materialemployment agreement, explicit restriction on the right executive agreement (including without limitation Chief Operating Officer agreement) or ability consulting agreement which provides for payments in excess of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business $50,000 per annum (other than nondisclosure agreementsemployment or consulting agreements terminable on less than thirty (30) days’ notice); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract any agreement involving any officer, director or stockholder of the Company or any affiliate (as defined in Rule 12b-2 under the Exchange Act) thereof (an “Affiliate”) (other than stock subscription, stock option, restricted stock, warrant or stock purchase agreements the forms of which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annumhave been made available to Parent);
(viii) each Purchased Contract with any agreement or commitment for capital expenditures in excess of $25,000, for a single project (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of it being represented and warranted that the Persons identified on Schedule 4.11(a)(viiiliability under all undisclosed agreements and commitments for capital expenditures does not exceed $100,000 in the aggregate for all projects);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit any agreement under which the consequences of a default or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing)termination would reasonably be expected to have a Company Material Adverse Effect;
(x) any Contractagreement which contains any provisions requiring the Company to indemnify any other party thereto (excluding indemnities contained in agreements for the purchase, sale or license of products entered into in the primary subject matter Ordinary Course of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business);
(xi) each Purchased Contract which createsany agreement, or may createother than as contemplated by this Agreement, an Encumbrance on any Purchased Asset in an amount or with a value in excess relating to the future sales of $50,000securities of the Company; and
(xii) any other agreement (or group of related agreements) (A) under which the Company is obligated to make payments or incur costs in excess of $25,000 in any year or (B) not entered into in the Ordinary Course of Business, in each Purchased Contract set forth on Schedule 4.11(a)(xiicase which is not otherwise described in clauses (i) through (xi).
(b) Except The Company has delivered or made available to the Parent a complete and accurate copy of each agreement listed in Section 2.14 of the Company Disclosure Schedule. With respect to each agreement so listed, except as set forth on Schedule 4.11(b) and other than with respect to the 787 Supply Agreement: (i) each Material Contract is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller and, to Seller’s Knowledge, of the other party or parties thereto and is enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.Section 2.14
Appears in 3 contracts
Sources: Agreement and Plan of Merger and Reorganization (Ds Healthcare Group, Inc.), Merger Agreement (Ds Healthcare Group, Inc.), Merger Agreement (Ds Healthcare Group, Inc.)
Contracts. (a) For purposes of this Agreement, Schedule 3.13(a) identifies each of the following shall constitute Contracts used in connection with the Pipelogic Business to which Pipelogic is a party or by which it or its properties is bound (each such identified Contract, a “Material Contract”:):
(i) each Purchased any Contract that provides for the payment or potential payment by Pipelogic of more than $50,000 in any consecutive 12-month period or more than $50,000 over the remaining life of such Contract other than a Contract that (A) is terminable by any party thereto giving notice of termination to the other party thereto not more than sixty (60) days in advance of the proposed termination date and (B) even if so terminable, contains no post-termination obligations, termination penalties, buy-back obligations or similar obligations;
(ii) any Contract that constitutes a purchase order or other Contract relating to the employment sale, purchase, lease or provision by Pipelogic of goods or services in excess of $50,000 in any 12-month period;
(iii) any Contract that grants any Person the exclusive right to sell products or provide services within any geographical region other than a Contract that (A) is terminable by any party thereto giving notice of termination to the other party thereto not more than sixty (60) days in advance of the proposed termination date and (B) even if so terminable, contains no post-termination obligations, termination penalties, buy-back obligations or similar obligations;
(iv) any Contract that purports to limit the freedom of Pipelogic to compete in any line of business or with any Person or to conduct business in any geographic location;
(v) any Contract relating to the acquisition or disposition by Pipelogic of the equity or assets of any company or any operating business or Interest of another Person (by asset sale, stock sale, merger or otherwise);
(vi) any Contract relating to the payment of any Tax or the filing of Tax Returns;
(vii) any Contract that is for the sale of goods or services and has not been substantially completed by Pipelogic as of the date of this Agreement and which (A) was entered into by Pipelogic on terms known at the time the Contract was entered into not to be commercially reasonable or (B) was entered into with the expectation that Pipelogic would incur a loss;
(viii) any Contract that was entered into outside of the Ordinary Course of Business of Pipelogic since December 31, 2017;
(ix) any Contract constituting a partnership, joint venture or other similar Contract;
(x) any Contract relating to indebtedness for borrowed money, any Contract creating a capital lease obligation, any Contract for the sale or factoring of accounts receivable, any Contract constituting a guarantee of debt of any other Person or any Contract requiring Pipelogic to maintain the financial position of any other Person;
(xi) any Contract under which Pipelogic has made advances or loans to any other Person;
(xii) any outstanding agreements of guaranty, surety or indemnification (other than master services agreements entered into in the Ordinary Course of Business of Pipelogic), direct or indirect, by Pipelogic, in each case where the annual obligations under such agreement are more than $10,000;
(xiii) any Contract pursuant to which (A) Intellectual Property Rights that are material to the Pipelogic Business or involving consideration in excess of $5,000 is licensed to Pipelogic (other than license agreement for unmodified “off-the-shelf” software on generally standard terms and conditions involving total consideration of less than $10,000) or (B) Pipelogic has granted a right with respect to Intellectual Property Rights that are material to the Pipelogic Business or involving consideration in excess of $5,000;
(xiv) any Contract that provides for (A) the purchase or sale of real property or (B) the lease (including any master lease covering multiple items of personal property) of any item or items of personal property with a rental expense under such lease (whether for a single item or multiple items);
(xv) any Contract providing for the deferred payment of any purchase price including any “earn out” or other contingent fee arrangement;
(xvi) any Contract creating a Lien on any of the Pipelogic Assets that will not be discharged at or prior to the Closing;
(xvii) any Contract between Pipelogic, on the one hand, and any Affiliate of Pipelogic, on the other hand (including any Contract providing for (A) compensation, the acceleration of benefits or the loss of any rights in connection with the consummation of the transactions contemplated by this Agreement or (B) the indemnification of such Affiliate by Pipelogic);
(xviii) any Contract with any Seller or any current or former officer, director, member, manager, partner, equityholder, consultant or employee of Pipelogic or any of the foregoing;
(xix) any Contract providing for the employment or engagement of any Person on a full-full time, part-part time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000;
(iixx) except any Contract with any labor union or association or other Person representing or seeking to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner represent any employee of Pipelogic or primarily any other individual who provides services to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)Pipelogic;
(iiixxi) each Purchased any Contract creating or relating to between Pipelogic and any partnership, limited liability company or joint venture or similar venture or arrangementGovernmental Authority;
(ivxxii) each Purchased any Contract with any customer involving interest rate swaps, cap or production supplier that involvescollar agreements, commodity or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment financial future or expenditure in excess of $2,000,000option contracts or similar derivative or hedging Contracts;
(vxxiii) each Purchased any Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery granting to any Person a right of a termination notice by Seller and contemplating or involvingfirst refusal, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash first offer or other consideration in an amount or having a value in excess right to purchase any of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar yearPipelogic Assets;
(vixxiv) each Seller any Contract imposing any material, explicit restriction on requiring Pipelogic to make a payment as a result of the right or ability consummation of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conductedtransactions contemplated hereby;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (Axxv) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing);
(x) any Contract, the primary subject matter of which is confidentiality, nondisclosure containing a “most favored nation” clause or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000provision; and
(xiixxvi) each Purchased any Contract set forth on Schedule 4.11(a)(xii)with any professional employer organization, personnel staffing organization, employee leasing organization or other entity that provides personnel services or other employment related or employee benefit related services to Pipelogic.
(b) Except as set forth on Schedule 4.11(bTrue and complete copies (including all amendments) and other than with respect to the 787 Supply Agreement: (i) of each Material Contract is in full force and effect and (ii) each have been furnished to Buyer. Each Material Contract constitutes a is the legal, validvalid and binding obligation of Pipelogic, and, to the Knowledge of Sellers, any other Person party thereto, binding and enforceable obligation of Seller against Pipelogic and, to Seller’s Knowledgethe Knowledge of Sellers, of the any other Person party or parties thereto and is enforceable thereto, in accordance with its termsterms subject to Creditors’ Rights. No Material Contract has been terminated, subject only to applicable bankruptcyand neither Pipelogic nor, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default underKnowledge of Sellers, any Material Contract (other Person is in each casematerial breach or default thereunder, and to the Knowledge of Sellers no event has occurred that with or without notice or lapse of time time, or both), nor is it in receipt of any written Claim of such default would constitute a material breach or breach; and (ii) to the Knowledge of Sellerdefault, no other Person has violated or breached permit termination, modification in any material respectmanner adverse to Pipelogic or acceleration thereunder. No party has asserted or has (except by operation of Legal Requirements) any right to offset, discount or committed otherwise ▇▇▇▇▇ any material default under, amount owing under any Material Contract (except as expressly set forth in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, such Material Contract. There are no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of Material Waivers regarding any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, that have not been disclosed in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available writing to Buyer.
Appears in 2 contracts
Sources: Purchase and Contribution Agreement, Purchase and Contribution Agreement (Sentinel Energy Services Inc.)
Contracts. (a) For purposes of this AgreementExcept as set forth on Schedule 3.27(a), each of the following shall constitute no Subsidiary is a “Material Contract”party to any:
(i) each Purchased Contract relating to for the employment (whether on a full-timeemployment, part-timeseverance or termination with any of its directors or officers, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000collective bargaining agreement;
(ii) except to Contract for the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license sale of any Intellectual Property material to of its assets, property or rights outside the conduct ordinary course of the Business business consistent with prior practice (other than nondisclosure agreements)this Agreement) which has not yet been fully performed in all material respects;
(iii) each Purchased Contract creating that requires the Company to indemnify or relating to act as an indemnitor, guarantor or surety, for any partnership, limited liability company other person or joint venture or similar venture or arrangemententity other than a Subsidiary;
(iv) each Purchased Contract with any customer or production supplier that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), restricting the payment or expenditure Company from conducting business anywhere in excess of $2,000,000the world;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involvingAgreement, or reasonably anticipated to involvenote, (A) the payment or delivery by or to the Business of cash debenture, loan, mortgage, indenture or other consideration obligation for or relating to borrowed money or commitments for obtaining borrowed money, in an amount or having a value each case in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year50,000;
(vi) each Seller Contract imposing any materialContract, explicit restriction on lease or commitment which involves the right future payment by or ability to it of more than $50,000, except (Ai) licensing agreements and software leases entered into in the Business to ordinary course, (1ii) compete withother Contracts or commitments for the sale of goods or purchase or lease of equipment, or solicit the tooling, supplies, services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere raw materials in each case entered into in the world; ordinary course of business consistent with prior practice and (3iii) acquire Contracts which may be canceled by it upon sixty (60) or fewer days notice without payment of any product penalty or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conductedfee in connection therewith;
(vii) each Purchased Contract under which Seller (A) leases Letter of credit or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess power of $100,000 per annumattorney;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) Joint venture contract or (B) any of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit similar arrangement or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing);
(x) any Contract, the primary subject matter of agreement which is confidentiality, nondisclosure or similar agreement with respect likely to confidentiality arrangements executed involve future payments by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value it in excess of $50,000; andor
(xiiix) each Purchased Contract set forth on Schedule 4.11(a)(xiito which any Partner, stockholder, officer or director of the Company or any "affiliate" or "associate" of such persons (as such terms are defined in the rules and regulations promulgated under the Securities Act), is presently a party, including, without limitation, any agreement or other arrangement providing for the furnishing of services by, rental of real or personal property from, or otherwise requiring payments to, any such person or entity.
(b) Except as set forth specified on Schedule 4.11(b3.27(b), all Contracts required to be listed on Schedule 3.27(a) are valid and other than binding, enforceable in accordance with respect to the 787 Supply Agreement: (i) each Material Contract is their respective terms and in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller andeffect. Neither the Company nor, to Seller’s Knowledgethe Company's knowledge, of the any other party or parties thereto and thereto, is enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a or in material default or exercise any remedy for breach under any Material Contract; term of any such agreement, and to the Company's knowledge there exists no condition or event which after lapse of time or notice (iiior both) given would constitute any Person the unilateral such breach or default or result in any right to accelerate the maturity or loss of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list rights. True and complete copies of all written Material such Contracts (including all amendments thereto have been delivered to QuadraMed, Sub A and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.Sub B.
Appears in 2 contracts
Sources: Acquisition Agreement (Quadramed Corp), Acquisition Agreement (Resource Health Partners Lp)
Contracts. (aSchedule 4(ll) For purposes of this Agreement, each of lists the following shall constitute contracts and other agreements to which Borrower or ALSC is a party (collectively, the “Material ContractContracts”:):
(i) each Purchased Contract relating any agreement (or group of related agreements) for the lease of personal property to the employment (whether on a full-time, part-time, consulting or other basis) of from any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000Person;
(ii) except to any agreement (or group of related agreements) for the extent included elsewhere purchase, sale or license, as applicable, of raw materials, commodities, supplies, products, software or other personal property or for the furnishing or receipt of services, the performance of which will extend over a period of more than one year or involve consideration in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license excess of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)$5,000;
(iii) each Purchased Contract creating or relating to any agreement concerning a partnership, joint venture or limited liability company or joint venture or similar venture or arrangementagreements (excluding investment portfolio transactions in the Ordinary Course of Business);
(iv) each Purchased Contract with any customer agreement (or production supplier that involvesgroup of related agreements) under which it has created, incurred, assumed or guaranteed any indebtedness for borrowed money, or would reasonably be expected to involve (assuming delivery any capitalized lease obligation or under which it has imposed an Encumbrance on any of eighty-four (84) shipsets per year)its assets, the payment tangible or expenditure in excess of $2,000,000intangible;
(v) each Purchased Contract not with customers any agreement concerning confidentiality or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar yearnoncompetition;
(vi) each Seller Contract imposing any material, explicit restriction on the right agreement with or ability of (A) the Business to (1) compete with, including Borrower or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conductedBorrower’s Affiliates;
(vii) each Purchased Contract under which Seller (A) leases any marketing agreement or subleases similar arrangement between ALSC and any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annumthird party insurance carrier whereby ALSC has agreed to sell and solicit to the insurance buying public insurance products underwritten by such third party insurance carrier;
(viii) each Purchased Contract with (A) any Affiliate agreement between ALSC or Borrower and a third party entity pursuant to which the third party entity has agreed to provide third party administrative services, including without limitation billing and collection of Seller (other than any employee premium on behalf of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii)ALSC;
(ix) each note, debenture, bond, indenture, guarantee, loan, credit any agreement relating to capital expenditures or financing agreement, instrument purchases of assets or properties (other evidence of, or Contract for, Indebtedness than purchase orders for such items in the Ordinary Course of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financingBusiness);
(x) any Contractagreement involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which has not been fully performed, satisfied and discharged, other than any such contracts concerning the primary subject matter routine collection of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf debts entered into in the Ordinary Course of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which createsany agreement granting to any Person a right of first refusal or option to purchase or acquire any capital stock, assets or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess rights of $50,000; andALSC;
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii).
(b) Except as set forth on Schedule 4.11(b) and other than with respect to the 787 Supply Agreement: (i) each Material Contract all Agent Contracts under which ALSC is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller and, to Seller’s Knowledge, of the other party or parties thereto and is enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case obligated as of the date of this AgreementAgreement to pay commissions;
(xiii) any other contract that is material to the business and is not terminable upon 90 calendar days’ written notice without penalty or premium;
(xiv) any other agreement (or group of related agreements) other than Insurance Policies, the performance of which involves consideration in excess of $25,000. A trueBorrower and ALSC have delivered to Lender, or have given Lender an opportunity to review, a correct and complete copy of each Contract listed in Schedule 4(ll). With respect to each such written Material Contract: (A) the Contract is legal, valid, binding, enforceable and in full force and effect; (including all amendments theretoB) ALSC is not in breach and, to the Knowledge of Borrower or ALSC, no other party is in breach or default, and neither Borrower nor ALSC has been made available to Buyerany Knowledge that any event has occurred which with notice or lapse of time would constitute a breach or default, or permit termination, modification or acceleration, under the Contract that would have a material adverse effect ; and (C) no party has repudiated any provision of the Contract.
Appears in 2 contracts
Sources: Loan, Convertible Preferred Stock and Convertible Senior Secured Note Purchase Agreement (Vespoint LLC), Loan, Convertible Preferred Stock and Convertible Senior Secured Note Purchase Agreement (Midwest Holding Inc.)
Contracts. Section 2.14 of the Disclosure Schedule lists the following written arrangements to which the Company is a party:
(a) For purposes any written arrangement for the lease of this Agreement, each of the following shall constitute a “Material Contract”:
(i) each Purchased Contract relating personal property from or to the employment (whether on a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or third parties providing for which the cost of such severance, termination or relocation payment would exceed $30,000;
(ii) except to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements);
(iii) each Purchased Contract creating or relating to any partnership, limited liability company or joint venture or similar venture or arrangement;
(iv) each Purchased Contract with any customer or production supplier that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure lease payments in excess of $2,000,000;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 15,000 per annum;
(viii) each Purchased Contract with (Ab) any Affiliate written arrangement for the licensing or distribution of Seller software, products or other personal property or for the furnishing or receipt of services: (other i) which calls for performance over a period of more than any employee one year; (ii) which involves more than the sum of Seller) $15,000; or (Biii) in which the Company has granted rights to license, sublicense or copy, "most favored nation" pricing provisions or exclusive marketing or distribution rights relating to any products or territory or has agreed to purchase a minimum quantity of goods or services or has agreed to purchase goods or services exclusively from a certain party;
(c) any written arrangement establishing a partnership or joint venture;
(d) any written arrangement (or group of related written arrangements) under which it has created, incurred, assumed, or guaranteed (or may create, incur, assume, or guarantee) indebtedness (including capitalized lease obligations) involving more than $15,000 or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(e) any written arrangement concerning confidentiality or noncompetition;
(f) any written arrangement with any of the Persons identified on Schedule 4.11(a)(viiiCompany Stockholders or their affiliates, as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act") ("Affiliates");
(ixg) each note, debenture, bond, indenture, guarantee, loan, credit any written arrangement under which the consequences of a default or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances termination could have a material adverse effect on the Purchased Assetsassets, and each Purchased Contract for borrowed money (including for business, financial condition, results of operations or future loans, credit or financing)prospects of the Company;
(xh) any Contractother written arrangement including those not entered into in the Ordinary Course of Business involving more than $15,000;
(i) other than arrangements pursuant to the Company's standard form maintenance and/or support agreement, the primary subject matter form of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect has been provided to the Business pursuant Buyer, any written arrangement under which the Company provides maintenance or support services to which any third party owes an obligation of confidentiality to Seller in relation with regard to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on Company's products and any Purchased Asset in an amount or with written arrangement containing a value in excess commitment by the Company to provide support for any such products for more than one year from the date of $50,000this Agreement; and
(xiij) any written arrangement by which the Company agrees to make available any Stalker series, WebStalker series or other product. The Company has delivered to the Buyer a correct and complete copy of each Purchased Contract set forth on Schedule 4.11(a)(xii).
written arrangement (bas amended to date) Except as set forth on Schedule 4.11(b) and other than with listed in Section 2.14 of the Disclosure Schedule. With respect to the 787 Supply Agreementeach written arrangement so listed: (i) each Material Contract the written arrangement is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller and in full force and effect with respect to the Company and, to Seller’s Knowledgethe Company's knowledge the written arrangement is legal, of the other party or parties thereto valid, binding and is enforceable and in accordance full force and effect with its termsrespect to each other party thereto, subject only to applicable except as enforcement may be limited by bankruptcy, insolvency, reorganization and reorganization, moratorium Laws and or other Laws of general application affecting similar laws effecting the enforcement of creditors’ ' rights generally.
(c) Except as set forth on Schedule 4.11(c) , and other than with respect except that the availability of equitable remedies, including specific performance, is subject to the 787 Supply Agreement: discretion of the court before which any proceedings therefor may be brought; (iii) Seller the written arrangement 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 prior to the Closing and does not require the consent of any party to the transactions contemplated hereby; and (iii) the Company is not in breach or default, to the Company's knowledge, no other party thereto is in breach or default, and no event has not violated or breached in any material respect or committed any material default under, any Material Contract (in each caseoccurred which, with or without notice or lapse of time would constitute a breach or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Sellerpermit termination, no other Person has violated or breached in any material respectmodification, or committed any material default underacceleration, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in written arrangement. The Company is not a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant party to any Material Contract; oral contract, agreement or (iv) give any Person other arrangement which, if reduced to written form, would be required to be listed in Section 2.14 of the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Disclosure Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material under the terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to BuyerSection 2.14.
Appears in 2 contracts
Sources: Merger Agreement (Trusted Information Systems Inc), Merger Agreement (Smaha Stephen E)
Contracts. (a) For Section 2.13 of the Disclosure Schedule lists the following written arrangements (including without limitation written agreements) to which the Company or any Subsidiary is a party:
(i) any written arrangement (or group of related written arrangements) for the lease of personal property from or to third parties providing for lease payments in excess of $50,000 per annum;
(ii) any written arrangement (or group of related written arrangements), currently in force or effect or which by its terms may in the future be in force or effect, for the licensing or distribution of software, products or other personal property or for the furnishing or receipt of services (i) which calls for performance by the Company or any Subsidiary (other than the performance solely of indemnification obligations) over a period of more than one year following the date hereof, (ii) which involves the payment or receipt of more than the sum of $100,000 following the date hereof, or (iii) in which the Company or any Subsidiary has granted rights to license, sublicense or copy, "most favored nation" pricing provisions or marketing or distribution rights relating to any products or territory or has agreed to purchase a minimum quantity of goods or services or has agreed to purchase goods or services exclusively from a certain party;
(iii) any written arrangement establishing a partnership or joint venture;
(iv) any written arrangement (or group of related written arrangements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $50,000 or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any written arrangement concerning confidentiality, non- solicitation or non-competition (other than the Company's standard form of confidentiality, nonsolicitation and non-competition agreement with its employees, a copy of which has been provided to the Buyer or its advisors, and the nondisclosure agreements entered into among any of the Parties in connection with the transactions contemplated by this Agreement);
(vi) any written arrangement involving any of the Company Stockholders or their Affiliates (for the purposes of this Agreement, each "Affiliate" shall mean (A) in the case of an individual, the members of the following shall constitute a “Material Contract”:
immediate family (including parents, siblings and children) of (i) each Purchased Contract relating to the employment (whether on a full-time, part-time, consulting or other basis) of any Employee of the Business, individual and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000;
(ii) except to the extent included elsewhere in this Section 4.11(a)individual's spouse, each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements);
and (iii) each Purchased Contract creating any Business Entity that directly or relating to any partnershipindirectly, limited liability company through one or joint venture more intermediaries controls, or similar venture is controlled by, or arrangement;
(iv) each Purchased Contract is under common control with any customer or production supplier that involvesof the foregoing individuals, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate in the 787 Program as currently conducted;
(vii) each Purchased Contract case of a Business Entity, another Business Entity or a person that directly or indirectly, through one or more intermediaries controls, or is controlled by, or is under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum;
(viii) each Purchased Contract common control with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viiiBusiness Entity);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing);
(x) any Contract, the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii).
(b) Except as set forth on Schedule 4.11(b) and other than with respect to the 787 Supply Agreement: (i) each Material Contract is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller and, to Seller’s Knowledge, of the other party or parties thereto and is enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Security Dynamics Technologies Inc /De/), Stock Purchase Agreement (Security Dynamics Technologies Inc /De/)
Contracts. (a) For purposes of this Agreement, each Section 2.14 of the Disclosure Schedule lists the following shall constitute a “Material Contract”:
agreements (iwritten or oral) each Purchased Contract relating to the employment currently in effect (whether on a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000;
(ii) except to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements);
(iii) each Purchased Contract creating or relating to any partnership, limited liability company or joint venture or similar venture or arrangement;
(iv) each Purchased Contract with any customer or production supplier that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, either in whole or in part, including agreements with ongoing post-termination “tails” and ongoing post-termination obligations) to which the Company or any Subsidiary is a party:
(i) any agreement (or group of related agreements) for the lease of real property (regardless of amount or term), or for the lease of personal property from any other Person involving or to third parties providing for lease payments or other consideration in excess of fifty thousand dollars ($100,000 50,000) per annumannum or having a remaining term longer than six (6) months;
(ii) any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, (B) which involves more than the sum of fifty thousand dollars ($50,000), or (C) in which the Company or any Subsidiary has granted manufacturing rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any products or territory or has agreed to purchase a minimum quantity of goods or services or has agreed to purchase goods or services exclusively from a certain party;
(iii) any agreement concerning the establishment or operation of a partnership, joint venture or limited liability company;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may reasonably be expected to create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than fifty thousand dollars ($50,000) or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement for the disposition of any significant portion of the assets or business of the Company or any Subsidiary (other than sales of products in the Ordinary Course of Business) or any agreement for the acquisition of the assets or business of any other entity (other than purchases of inventory or components in the Ordinary Course of Business);
(vi) any agreement under which the Company or any Subsidiary has, or may reasonably be expected to have, any liability to an employee or consultant for pay or benefits after the ending of the business relationship with such employee or consultant;
(vii) any agreement involving any officer, director or stockholder of the Company or a Subsidiary under which the Company or any Affiliate has or may reasonably be expected to have any liability or obligation;
(viii) each Purchased Contract with (A) any Affiliate agreement under which the consequences of Seller (other than any employee of Seller) a default or (B) any of termination would reasonably be expected to, be material to the Persons identified on Schedule 4.11(a)(viii)Company and the Subsidiaries, taken as a whole;
(ix) each noteany agreement which contains any provisions requiring the Company or any Subsidiary to indemnify any other party (excluding indemnities contained in agreements for the purchase, debenture, bond, indenture, guarantee, loan, credit sale or financing agreement, instrument or other evidence of, or Contract for, Indebtedness license of Seller secured by or providing Encumbrances on products entered into in the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financingOrdinary Course of Business);
(x) any Contractagreement that purports on its face to bind any Affiliate of the Company or any Subsidiary (other than the Company or any Subsidiary) in any way, the primary subject matter of which is confidentialityincluding, nondisclosure or similar agreement with respect but not limited to, prohibiting such Affiliate from engaging in any business that they would otherwise have been permitted to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;engage in.
(xi) each Purchased Contract any agreement under which createsthe Company or any Subsidiary is restricted or prohibited from selling, licensing or otherwise distributing any of its technology or products, or may createproviding services to, an Encumbrance on customers or potential customers or any Purchased Asset class of customers, or otherwise engaging in an amount a material aspect of the Company’s business in any geographic area, during any period of time or with any Person, or any segment of the market or line of business;
(xii) any agreement which would entitle any third party to receive a value in excess license or any other right to intellectual property of $50,000the Buyer or any of the Buyer’s Affiliates following the Closing; and
(xiixiii) each Purchased Contract set forth on Schedule 4.11(a)(xii)any other agreement (or group of related agreements) either involving more than fifty thousand dollars ($50,000) or not entered into in the Ordinary Course of Business.
(b) Except as set forth on Schedule 4.11(b) and other than with respect The Company has delivered or made available to the 787 Supply Agreement: (i) each Material Contract is in full force Buyer a complete and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller and, to Seller’s Knowledge, of the other party or parties thereto and is enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete accurate copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.agreement listed in Section 2.12 or Section 2.14
Appears in 2 contracts
Sources: Merger Agreement (Skyworks Solutions, Inc.), Merger Agreement (Skyworks Solutions, Inc.)
Contracts. (a) For purposes of this Agreement, each Schedule 3.16 sets forth (with paragraph references corresponding to those set forth below) a true and complete list of the following shall constitute written contracts, plans, licenses, undertakings, commitments, instruments or agreements ("Contracts") to which Triton is a “Material Contract”party or is bound as of the date hereof, as follows:
(i) each Purchased Contract all Contracts (excluding Triton Benefit Plans) providing for a commitment of employment for a specified or unspecified term or otherwise relating to employment, the employment (whether on a full-timetermination of employment, part-timeseverance, personal services, consulting or other basis) of any Employee of indemnification for officers, directors or the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000like;
(ii) except all Contracts containing any provision or covenant prohibiting or materially limiting the ability of Triton to engage in any business activity or to compete with any person or entity or prohibiting or materially limiting the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license ability of any Intellectual Property material person or entity to the conduct of the Business (other than nondisclosure agreements)engage in any business activity or to compete with Triton;
(iii) each Purchased Contract creating or relating to any all material partnership, limited liability company joint venture, shareholders' or joint venture other similar Contracts with any person or similar venture or arrangemententity;
(iv) each Purchased Contract with any customer all Contracts providing for the lending of money, whether as borrower, lender or production supplier guarantor that, individually or in the aggregate, exceed $50,000 and all related security agreements or similar agreements associated therewith that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000survive Closing;
(v) all Contracts (including so-called take-or-pay or keepwell agreements), under which Triton has directly or indirectly guaranteed indebtedness, liabilities or obligations of any person or entity (in each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after case other than endorsements for the delivery purpose of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 collection in the aggregate in any calendar year; (BOrdinary Course of Business) the performance by that, individually or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the saleaggregate, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of exceed $250,000 in the aggregate in any calendar year50,000;
(vi) each Seller Contract imposing any materialall Contracts pending for the acquisition or disposition, explicit restriction on the right directly or ability indirectly (by merger or otherwise) of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business assets (other than nondisclosure agreements); or (Bcoal) Buyer to own and operate the 787 Program as currently conductedthat individually exceed $1,000,000;
(vii) each Purchased Contract under which Seller all continuing Contracts for the future purchase or lease of materials, supplies or equipment (Aother than purchase contracts and orders for inventory in the Ordinary Course of Business) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of that individually have an aggregate future liability that exceeds $100,000 per annum1,000,000;
(viii) each Purchased Contract with (A) all Contracts pertaining to the ownership, operation or maintenance of any Affiliate and all facilities of Seller (other Triton having a term greater than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii)90 days, which individually exceed $4,000,000;
(ix) each note, debenture, bond, indenture, guarantee, loan, credit any other agreement (not expressly covered by one of the other clauses of this Section 3.16(a)) of Triton (other than financing agreements and coal contracts) that requires annual payments to be made or financing agreement, instrument or other evidence of, or Contract for, Indebtedness received in excess of Seller secured by or providing Encumbrances on the Purchased Assets, $50,000 and each Purchased Contract for borrowed money that is not cancelable with ninety (including for future loans, credit or financing)90) days notice;
(x) all Contracts between Triton, on one hand, and either Contributor or any Contractaffiliate of such Contributor, on the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Businessother hand;
(xi) all material Contracts relating to the purchase, sale or transport of coal and all agreements with coal brokers (in each Purchased Contract which createscase, other than purchase orders);
(xii) all Contracts for coal treatment and tippling;
(xiii) all material Contracts relating in whole or in part to the intellectual property of Triton;
(xiv) all collective bargaining or similar labor Contracts;
(xv) all guarantees, indemnities, letters of credit, letters of comfort, surety bonds, self-bonds, other bonds, including reclamation bonds, financial guaranty bonds, performance bonds and other obligations obtained or issued by the Contributors or Triton or their affiliates for the benefit of Triton or otherwise in force with respect to Triton (collectively, the "Guarantees");
(xvi) all Contracts (other than this Agreement and its governing documents) that survive the Closing and that (A) limit or contain restrictions on the ability of Triton to declare or make distributions with respect to, or may createto issue or purchase, an Encumbrance on redeem or otherwise acquire, its Triton Interests, to incur indebtedness, to incur or suffer to exist any Purchased Asset Lien, to purchase or sell any assets and properties, to change the lines of business in an amount which it participates or with a value engages or to engage in excess any merger or other business combination or (B) require Triton to maintain specified financial ratios or levels of $50,000net worth or other indicia of financial condition; and
(xiixvii) each Purchased Contract to the extent not otherwise set forth on Schedule 4.11(a)(xii)3.16, any other Contract the primary purpose of which is to indemnify or otherwise make whole any person or entity with an indemnification or make whole obligation having a value that exceeds $50,000.
(b) True copies of the written Contracts identified in Schedule 3.16 have been made available to the MLP prior to the execution of this Agreement. Except as set forth on Schedule 4.11(b3.16, Triton is not and, to the knowledge of the Contributors, no other party is in default under, or in breach or violation of (and no event has occurred which, with notice or the lapse of time or both, would constitute a default under, or a breach or violation of) any term, condition or provision of any Contract identified on Schedule 3.16, except for defaults, breaches, violations or events which, individually or in the aggregate, are not reasonably likely to have a Triton Material Adverse Effect.
(c) Other than Contracts that have terminated or expired in accordance with their terms, each of the Contracts identified on Schedule 3.16 constitutes valid, binding and enforceable obligations of Triton to the extent it is a party thereto and, to the knowledge of the Contributors, enforceable obligations of any other party thereto, in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered on a proceeding in equity or at law) and other than with respect to the 787 Supply Agreement: (ian implied covenant of good faith and fair dealing) each Material Contract and is in full force and effect and (ii) each effect, except where such failure is not reasonably likely to have a Triton Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller and, to Seller’s Knowledge, of the other party or parties thereto and is enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generallyAdverse Effect.
(cd) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller No event has not violated occurred that either entitles, or breached in any material respect or committed any material default underwould, any Material Contract (in each case, with or without upon notice or lapse of time or both), nor is it in receipt entitle the holder of any written Claim of such default or breach; and (ii) indebtedness for borrowed money affecting Triton to the Knowledge of Seller, no other Person has violated or breached in any material respectaccelerate, or committed any material default underthat does accelerate, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contractindebtedness affecting Triton.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 2 contracts
Sources: Contribution Agreement (Atlas Pipeline Partners Lp), Contribution Agreement (Resource America Inc)
Contracts. (aSection 4(m) For purposes of this Agreement, each of the Disclosure Schedule lists the following shall constitute contracts, agreements, Customer Contracts or Agreements and other written arrangements to which Sigma6 is a “Material Contract”party:
(i) each Purchased Contract relating any written agreement (or group of related written agreements) for the lease of personal property from or to the employment (whether on a full-time, part-time, consulting or other basis) third parties providing for lease payments in excess of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,00015,000 per annum;
(ii) except to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure as referenced in paragraph (i) immediately preceding, any written agreement (or group of related written agreements)) for the furnishing or receipt of services which Sigma6 reasonably projects will involve more than the sum of $30,000 per annum or $50,000 over the life of such agreement;
(iii) each Purchased Contract creating or relating to any partnership, limited liability company written agreement concerning a partnership or joint venture or similar venture or arrangementventure;
(iv) each Purchased Contract with any customer written agreement (or production supplier that involvesgroup of related written agreements) under which it has created, incurred, assumed, or would reasonably be expected to involve guaranteed (assuming delivery or may create, incur, assume, or guarantee) indebtedness (including lease obligations) involving more than $15,000 or under which it has imposed (or may impose) a Security Interest on any of eighty-four (84) shipsets per year)its assets, the payment tangible or expenditure in excess of $2,000,000intangible;
(v) each Purchased Contract not any written arrangement requiring confidentiality or noncompetition other than agreements with customers customers, employees, licensors, vendors or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 subcontractors in the aggregate in any calendar year; (B) the performance by or for the Business Ordinary Course of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar yearBusiness;
(vi) each Seller Contract imposing any materialwritten arrangement with any of its directors, explicit restriction on the right or ability of (A) the Business to (1) compete withofficers, or solicit the services or employment of, any other Person; (2) sell any product or other Assetemployees, or perform any services anywhere of its Affiliates other than standard contracts for service as employees or subcontractors in the worldOrdinary Course of Business; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;and
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person written arrangement (or group of related written arrangements) either involving lease payments more than $25,000 per annum or other consideration not entered into in excess the Ordinary Course of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing);
(x) any Contract, the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect Business. Sigma6 has delivered to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with Buyer a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii).
(b) Except as set forth on Schedule 4.11(b) and other than with respect to the 787 Supply Agreement: (i) each Material Contract is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller and, to Seller’s Knowledge, of the other party or parties thereto and is enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each written arrangement listed in Section 4(m) of the Disclosure Schedule (as amended to date). With respect to each written arrangement so listed: (A) the written arrangement is legal, valid, binding, enforceable against Sigma6 and, to Sigma6 and Seller's Knowledge, the other parties thereto and in full force and effect, subject to the Equitable Exceptions; (B) except as set forth in Section 4(m) of the Disclosure Schedule, the written arrangement will continue to be legal, valid, binding, enforceable and in full force and effect on identical terms immediately following the Closing, subject to the Equitable Exceptions and if Newco performs thereunder and does not breach such agreement after the Closing Date, (C) Sigma6 is not, nor to the Knowledge of the Sellers and Sigma6 is any other party, in breach or default, and no event has occurred which with notice or lapse of time would constitute a breach or default or except in the Ordinary Course of Business permit termination, modification, or acceleration, under the written arrangement; and (D) Sigma6 has not, nor to the Knowledge of the Sellers and Sigma6 has any other party, repudiated any provision of the written arrangement. Sigma6 is not a party to any oral contract, agreement, or other arrangement which, if reduced to written form, would be required to be listed in Section 4(m) of the Disclosure Schedule under the terms of this Section 4(m). No unfilled Customer Contract or Agreement obligating Sigma6 to perform services will result in a Material loss to Sigma6 upon completion of performance. Except as set forth in Section 4(m) of the Disclosure Schedule, Sigma6 has not been notified that any of its customers intends either to dispute charges under or to terminate early a Material Customer Contract (including all amendments thereto) has been made available to Buyeror Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Appnet Systems Inc), Merger Agreement (Appnet Systems Inc)
Contracts. (a) For purposes Schedule 4.12(a) contains an accurate and complete list, and the PEARL Group Members have delivered to Purchaser or made available to Purchaser to review accurate and complete copies (to the extent such are memorialized in writing), of this Agreement, each of the following shall constitute a “Material Contract”since December 31, 2006:
(i) each Purchased Contract relating to the employment (whether on between a full-time, part-time, consulting or other basis) of any Employee of the Business, PEARL Group Member and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000a Related Person;
(ii) except Except for contracts, license or other agreements relating to the extent included elsewhere in this Section 4.11(acomputer software used by PEARL Group Members (including specialized software for accounting and engineering applications), and except for contracts or other agreements (including TSAs and MSAs) entered into in the Ordinary Course of Business, each Purchased Contract relating that involves performance of services or delivery of goods or materials by a PEARL Group Member or to a PEARL Group Member, as the case may be, (A) of an amount or value in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license excess of any Intellectual Property material to the conduct of the Business $75,000.00 and (other B) that is not cancelable with no more than nondisclosure agreements)90 days notice;
(iii) each Purchased Contract creating (other than contracts for the acquisition of motor vehicles by any PEARL Group Member) that was not entered into in the Ordinary Course of Business and that involves expenditures or relating to any partnership, limited liability company or joint venture or similar venture or arrangementreceipts of a PEARL Group Member in excess of $20,000.00;
(iv) each Purchased Contract affecting the ownership of, leasing of, title to, use of or any leasehold or other interest in any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $20,000.00 and with any customer or production supplier that involves, or would reasonably be expected to involve (assuming delivery a term of eighty-four (84) shipsets per less than one year), the payment or expenditure in excess of $2,000,000;
(v) each Purchased Contract not with customers any labor union or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery other employee representative of a termination notice by Seller group of employees relating to wages, hours and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business other conditions of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar yearemployment;
(vi) each Seller Contract imposing any material(however named) involving a sharing of profits, explicit restriction on the right losses, costs or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business liabilities by a PEARL Group Member with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases containing covenants that in any way purport to restrict a PEARL Group Member's current business activity or subleases limit the freedom of a PEARL Group Member to engage in any real property line of business or (B) leases or subleases to compete with any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annumPerson;
(viii) each Purchased Contract with (A) providing for payments to or by any Affiliate of Seller (Person based on sales, purchases or profits, other than any employee of Seller) direct payments for goods or (B) any of the Persons identified on Schedule 4.11(a)(viii)services;
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness power of Seller secured by or providing Encumbrances on the Purchased Assets, attorney of a PEARL Group Member that is currently effective and each Purchased Contract for borrowed money (including for future loans, credit or financing)outstanding;
(x) any Contract, each Contract entered into other than in the primary subject matter Ordinary Course of which is confidentiality, nondisclosure Business that contains or similar agreement with respect provides for an express undertaking by a PEARL Group Member to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Businessbe responsible for consequential damages;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value for capital expenditures in excess of $50,000; and50,000.00;
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii).not denominated in U.S. dollars; and
(xiii) each written warranty, guaranty or other similar undertaking with respect to contractual performance extended by a PEARL Group Member other than in the Ordinary Course of Business;
(b) Except as set forth on in Schedule 4.11(b) 4.12(b), Seller and other than with respect to the 787 Supply Agreement: (i) each Material its Affiliates do not have or currently may not acquire any rights under any Contract is in full force and effect and (ii) each Material Contract constitutes of a legal, valid, binding and enforceable obligation PEARL Group Member or any of Seller and, to Seller’s Knowledge, of the other party or parties thereto and is enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generallya PEARL Group Member's assets.
(c) Except as set forth on in Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: 4.12(c):
(i) Seller has not violated unless completed in the Ordinary Course of Business or breached discharged due to the bankruptcy of a party thereto, each Contract identified or required to be identified in any material respect or committed any material default under, any Material Contract (Schedule 4.12(a) is in each case, full force and effect and is valid and enforceable in accordance with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and its terms;
(ii) no Contract identified or required to be identified in Schedule 4.12
(a) is subject to cancellation or termination as a result of the transactions contemplated herein; and
(iii) no Contract identified or required to be identified in Schedule 4.12(a) will (to the Knowledge best of Seller, no other Person has violated PEARL's Knowledge) upon completion or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both)performance thereof have an adverse effect on a PEARL Group Member.
(d) Other than Except as set forth in Schedule 4.12(d):
(i) Each PEARL Group Member has, and at all times since December 31, 2004, has been, in compliance in all material respects with all applicable terms and requirements of each Contract to which a PEARL Group Member is a party;
(ii) each other Person that has or had any obligation or liability under any Contract to which a PEARL Group Member is a party is, and at all times since December 31, 2004, has been, in full compliance with all applicable terms and requirements of such Contract in all material respects;
(iii) to the 787 Supply Agreementbest of the PEARL Parties' Knowledge, no event has occurred or development has occurred, and no fact, circumstance or condition exists, exists that (with or without notice or lapse of time time) may contravene, conflict with or both) has (i) resulted result in a material violation Breach of, or breach of any provision of any Material Contract by Seller; (ii) given any give a PEARL Group Member or other Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right under, or to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right performance of, or payment under, or to cancel, terminate or modify, in any material respect, any Material Contract.Contract to which a PEARL Group Member is a Party;
(eiv) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms no event has occurred or circumstance exists under or by virtue of any oral Contract that (with or unwritten Contract constituting without notice or lapse of time) would cause the creation of any Encumbrance affecting any of a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.PEARL Group Member's assets; and
Appears in 2 contracts
Sources: Stock Purchase Agreement (Epic Energy Resources, Inc.), Stock Purchase Agreement (Epic Energy Resources, Inc.)
Contracts. (a) For purposes of this Agreement, each Section 2.13(a) of the Disclosure Schedule lists the following shall constitute a “Material Contract”:
agreements (iwritten or oral) each Purchased Contract relating to the employment currently in effect (whether on a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000;
(ii) except to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements);
(iii) each Purchased Contract creating or relating to any partnership, limited liability company or joint venture or similar venture or arrangement;
(iv) each Purchased Contract with any customer or production supplier that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, either in whole or in part, including agreements with ongoing post-termination “tails” and ongoing post-termination obligations) to which the Company is a party:
(i) any agreement (or group of related agreements) for the lease of personal property from any other Person involving or to third parties providing for lease payments or other consideration in excess of twenty-five thousand dollars ($100,000 25,000) per annumannum or having a remaining term longer than six (6) months;
(ii) any agreement (or group of related agreements) for the purchase of products or for the receipt of services (A) which calls for performance over a period of more than one (1) year, (B) which involves more than twenty-five thousand dollars ($25,000), or (C) in which the Company has agreed to purchase a minimum quantity of goods or services or has agreed to purchase goods or services exclusively from a certain party;
(iii) any agreement providing for any royalty, milestone or similar payments by the Company;
(iv) any agreement concerning the establishment or operation of a partnership, joint venture or limited liability company;
(v) 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;
(vi) any agreement for the disposition of any significant portion of the assets or business of the Company (other than sales of products in the Ordinary Course of Business) or any agreement for the acquisition of the assets or business of any other entity (other than purchases of inventory or components in the Ordinary Course of Business);
(vii) any employment, independent contractor or consulting agreement;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) agreement, plan, or (B) any of the Persons identified on Schedule 4.11(a)(viii)program providing for severance, retention payments, change in control payments or transaction-based bonuses;
(ix) each noteany agreement with a third party concerning Intellectual Property developments, debentureconfidentiality, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing)non-competition and/or non-solicitation;
(x) any Contractsettlement agreement or settlement-related agreement (including any agreement in connection with which any employment-related claim is settled);
(xi) any agreement with any professional employer organization or similar arrangements;
(xii) any agreement involving any current or former officer, director or stockholder of the primary subject matter Company or an Affiliate thereof;
(xiii) any agreement under which the consequences of a default or termination would reasonably be expected in the future to be material to the Company;
(xiv) any agreement which contains any provisions requiring the Company to indemnify any other party;
(xv) any agreement relating to the research, development, commercialization, clinical trial, manufacturing, distribution, supply, marketing or co-promotion of any products, product candidates (including the Product) or devices in development by or which has been or which is confidentialitybeing researched, nondisclosure developed, marketed, distributed, supported, sold or similar agreement with respect to confidentiality arrangements executed licensed out, in each case by or on behalf of Seller the Company;
(xvi) any agreement that purports to bind or otherwise could bind any Affiliate of the Buyer or any of its subsidiaries (other than the Company) in any way, including prohibiting such Affiliate from engaging in any business that they would otherwise have been permitted to engage in;
(xvii) any agreement under which the Company is restricted or prohibited from selling, licensing or otherwise distributing any of its technology or products, or providing services to, customers or potential customers or any class of customers, or otherwise engaging in a material aspect of its business, in any geographic area, during any period of time or with respect to any Person, or any segment of the Business pursuant to market or line of business;
(xviii) any agreement which would entitle any third party owes an obligation to receive a license or any other right to Intellectual Property of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, Buyer or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000the Buyer’s Affiliates following the Closing; and
(xiixix) each Purchased Contract set forth on Schedule 4.11(a)(xii)any other agreement (or group of related agreements) either involving more than twenty-five thousand dollars ($25,000) or not entered into in the Ordinary Course of Business.
(b) Except as set forth on Schedule 4.11(b) and other than with respect The Company has delivered to the 787 Supply Agreement: Buyer a complete and accurate copy of (i) each Material Contract is agreement listed in full force and effect Section 2.11, Section 2.12 or Section 2.13 of the Disclosure Schedule and (ii) a complete and accurate list of any offer letters for current employees issued by the Company, and a copy of any such offer letter has heretofore been provided to the Buyer. With respect to each Material Contract constitutes a agreement so listed or required to be listed: (A) the agreement is legal, valid, binding and enforceable obligation of Seller andand in full force and effect, subject to the Bankruptcy and Equity Exception; (B) neither the Company nor, to Seller’s Knowledge, the knowledge of the Company, any other party party, is in breach or parties thereto and is enforceable in accordance with its termsviolation of, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default under, any Material Contract (in each casesuch agreement, and no event has occurred, is pending or, to the knowledge of the Company, is threatened, which, after the giving of notice, with or without notice or lapse of time time, or both)otherwise, nor is it in receipt would constitute a breach or default by the Company or, to the knowledge of the Company, any written Claim of other party under such default or breachagreement; and (iiC) such agreement will continue to be legal, valid, binding, enforceable and in full force and effect immediately following the Closing in accordance with the terms thereof as in effect immediately prior to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both)Closing.
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 2 contracts
Sources: Agreement and Plan of Merger, Merger Agreement (Amag Pharmaceuticals Inc.)
Contracts. (a) For purposes Section 3.12 of this Agreement, each the Disclosure Schedule contains a list of the following shall constitute contracts, agreements, leases and other legally binding instruments, whether written or oral to which the Company is, or after the consummation of the transactions contemplated by the Contribution Agreement and the related transfer agreements will be, a party or by which it is, or after the consummation of the transactions contemplated by the Contribution Agreement and the related transfer agreements will be, otherwise bound (each such contract, a “Material Contract”:):
(a) contracts with respect to Benefit Plans sponsored by the Company;
(b) collective bargaining agreements and any other contracts with any labor unions;
(c) agreements for the employment or engagement of any officer or employee (not including at-will employment or offer letters) that (i) each Purchased Contract relating to the employment (whether on a full-time, part-time, consulting provide annual cash or other basis) compensation in excess of any Employee of the Business$50,000 per year, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000;
(ii) except provide for Change of Control Payments, or (iii) restrict the ability of the Company to terminate the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license employment of any Intellectual Property material to the conduct of the Business Person at any time for any lawful reason or for no reason without liability (other than nondisclosure agreementsincluding severance obligations);
(iiid) each Purchased Contract creating agreements or relating to arrangements with any partnership, limited liability company individual serving as an independent contractor who works for or joint venture or similar venture or arrangementsupports the Business;
(ive) each Purchased Contract with any customer loan or production supplier that involvescredit agreements, promissory notes, bonds, debentures, security agreements, pledge agreements, mortgages, indentures, factoring agreements, guarantees, letters of credit, performance bonds, completion bonds, surety agreements, or would reasonably be expected to similar financing arrangements;
(f) leases, subleases or licenses, either as lessee, sublessee or licensee or as lessor, sublessor or licensor, of any personal property, including capital leases, which agreements involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure annual payments in excess of $2,000,000;
(v) each Purchased Contract not with customers or production suppliers that may 200,000, cannot be terminated (cancelled by the Company without penalty) by Seller within thirty (30) payment or penalty upon notice of 30 days after the delivery of a termination notice by Seller and contemplating or involvingless, or reasonably anticipated to involve, (A) have unexpired terms as of the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar Closing Date that exceed one year;
(vig) each Seller Contract imposing any materialagreements or series of related agreements with customers, explicit restriction on suppliers and vendors of the right Company for the purchase or ability sale of (A) the Business to (1) compete with, goods or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annumin the aggregate, which cannot be cancelled by the Company without payment or penalty upon notice of 30 days or less, or have unexpired terms as of the Closing Date that exceed one year, in each case in effect as of the date hereof;
(viiih) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing);
(x) any Contract, the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller agreements with respect to the Business pursuant acquisition or disposition of any business, assets or securities outside the Ordinary Course of Business, or any equity or debt investment in or any loan to which any third party owes an obligation of confidentiality to Seller in relation to the BusinessPerson;
(xii) each Purchased Contract limited liability company agreements, partnership agreements, joint venture agreements and all other similar contracts (however named) that involve a sharing of profits, losses, costs or liabilities by the Company with any other Person;
(j) all agreements by which createsthe Company, Seller or may createHoldings licenses any Business Intellectual Property to any Person and all agreements for Licensed Intellectual Property, an Encumbrance on other than agreements for commercial “off-the-shelf” Software or Open Source Software;
(k) agreements with Seller or any Purchased Asset current or former officer, director, stockholder or Affiliate of the Company;
(l) agreements containing covenants of the Company not to compete in an amount any line of business or with a value any person in excess any geographical area or covenants of $50,000any other Person not to compete with the Company in any line of business or in any geographical area;
(m) outstanding agreements of guaranty, surety or indemnification, direct or indirect, by the Company;
(n) any Tax Sharing Agreement; and
(xiio) each Purchased Contract set forth on Schedule 4.11(a)(xii).
(b) Except as set forth on Schedule 4.11(b) amendment, supplement and other than with modification in respect of any of the foregoing. All of the Material Contracts to which the 787 Supply Agreement: (i) each Material Contract is Company is, or after the consummation of the transactions contemplated by the Contribution Agreement and the related transfer agreements will be, a party are in full force and effect and (ii) each Material Contract constitutes a are legal, validvalid and binding obligations of the Company, binding and enforceable obligation of Seller against it in accordance with their terms, and, to Sellerthe Company’s Knowledge, of the each other party or parties thereto and is enforceable in accordance with its termsthereto, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(c) and other than with respect except to the 787 Supply Agreement: (i) Seller has not violated or breached extent enforcement may be affected by Enforceability Exceptions. The Company is in any compliance in all material respect or committed any material default under, any respects with the terms and requirements of such Material Contract (and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in each casecompliance in all material respects with the terms and requirements of such Material Contract, and no event has occurred that with or without notice or the lapse of time or both), nor is it in receipt the giving of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare both would constitute a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant thereunder. No party to any Material Contract; or (iv) give any Person of the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant has exercised any termination rights with respect thereto. The Company has made available to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A Purchaser true, correct and complete copy copies of each such written all of the Material Contract (including Contracts, together with all amendments amendments, modifications or supplements thereto) has been made available to Buyer.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Autoliv Inc), Stock Purchase Agreement (M/a-Com Technology Solutions Holdings, Inc.)
Contracts. (a) For purposes Except (x) for this Agreement, (y) for a Company Plan or the Company Share Plans and (z) as set forth in Section 3.8(a) of the Company Disclosure Letter, neither 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, each of the following shall constitute a “Material Contract”that:
(i) each Purchased Contract relating would be required to be filed by the employment (whether Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K of the Securities Act or disclosed by the Company on a fullCurrent Report on Form 8-timeK, partAnnual Report on Form 10-time, consulting K or other basis) of any Employee of Quarterly Report on Form 10-Q that has not been filed or incorporated by reference in the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000SEC Reports;
(ii) except to contains any covenant that materially restricts the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct ability of the Business Company or any of its subsidiaries, taken as a whole, to (A) engage in any business, (B) compete in any business or with any Person, (C) operate in any geographic area or (D) solicit or hire any employee or consultant other than nondisclosure agreements)pursuant to non-disclosure agreements entered into in the ordinary course of business;
(iii) each Purchased is a joint venture, partnership, limited liability or other similar agreement or arrangement or Contract creating or relating to the formation, creation, operation, management or control of any partnership, joint venture, limited liability company or joint venture other similar agreements or similar venture arrangements or arrangementContracts;
(iv) 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 or any of its subsidiaries (for the avoidance of doubt, other than Contracts related to vault cash arrangements), in each Purchased 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 customer Governmental Entity;
(vii) requires the Company or production supplier that involvesany 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;
(ix) (A) contains “most favored nation” pricing provisions which impose obligations on the Company or any of its subsidiaries with any third party, or (B) grants exclusive rights, rights 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 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 aggregate revenue (including termination fees) by the Company 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 or any of its subsidiaries has continuing indemnification, guarantee, “earn-out” or other contingent payment obligations, in each case, that would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure result in payments in excess of $2,000,000;
(vxiii) each Purchased 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 not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involvingat least $1,000,000 individually, or $2,000,000 in the aggregate;
(xiv) is between the Company 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 the 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 anticipated be expected to involveprevent, delay or impair the consummation of the transactions contemplated herein, including the Acquisition;
(Axvi) involves the payment of royalties to, or delivery by receipt of royalties from, any Person (other than the Company or to the Business any of cash or other consideration in an amount or having a value in excess its subsidiaries) of more than $250,000 1,000,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having pursuant to a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property that is material to the Business (other than nondisclosure agreements)Company and its subsidiaries taken as a whole; or (B) Buyer to own and operate the 787 Program as currently conducted;or
(viixvii) each Purchased is a Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing);
(x) any Contract, the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation grants to the Business;
(xi) each Purchased Contract which createsCompany or any of its subsidiaries a license, right or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii).
(b) Except as set forth on Schedule 4.11(b) and other than covenant not to ▇▇▇ with respect to any Licensed Intellectual Property that is material to the 787 Supply Agreement: Company and its subsidiaries taken as a whole (i) each Material Contract is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller and, to Seller’s Knowledge, of the other party or parties thereto and is enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(c) and other than with respect to (1) intercompany licenses between the 787 Supply Agreement: Company and any of its subsidiaries, (i2) Seller has not violated licenses for Open Source Software or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse 3) licenses for Software that is generally commercially available on standard terms for less than $300,000 (based on the dollar value of time or bothexpenditures from fiscal year 2019), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 2 contracts
Sources: Acquisition Agreement (NCR Corp), Acquisition Agreement (Cardtronics PLC)
Contracts. (a) For purposes Schedule 2.13 of the Disclosure Schedule lists the following agreements (written or oral) to which the Company is a party as of the date of this Agreement, each of the following shall constitute a “Material Contract”:
(i) each Purchased Contract relating any agreement (or group of related agreements) for the lease of personal property from or to the employment (whether on third parties providing for lease payments in excess of $25,000 per annum or having a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more remaining term longer than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,00012 months;
(ii) except any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, (B) which involves more than the sum of $50,000, or (C) in which the Company has granted manufacturing rights, “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in any products or territory or has agreed to purchase a material manner minimum quantity of goods or primarily services or has agreed to the acquisition, use, transfer, development, ownership, sharing purchase goods or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)services exclusively from a certain party;
(iii) each Purchased Contract creating or relating any agreement which, to any partnershipthe knowledge of the Company, limited liability company establishes a partnership or joint venture or similar venture or arrangementventure;
(iv) each Purchased Contract with other than the Bridge Notes, any customer agreement (or production supplier that involvesgroup of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $25,000 or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or noncompetition;
(vi) any employment or consulting agreement;
(vii) any agreement involving any officer, director or stockholder of the Company or any affiliate, as defined in Rule 12b-2 under Exchange Act, thereof (an “Affiliate”);
(viii) any agreement under which the consequences of a default or termination would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of have a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii)Company Material Adverse Effect;
(ix) each noteany agreement which contains any provisions requiring the Company to indemnify any other party thereto (excluding indemnities contained in agreements for the purchase, debenture, bond, indenture, guarantee, loan, credit sale or financing agreement, instrument or other evidence of, or Contract for, Indebtedness license of Seller secured by or providing Encumbrances on products entered into in the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financingOrdinary Course of Business);
(x) any Contract, other agreement (or group of related agreements) either involving more than $25,000 or not entered into in the primary subject matter Ordinary Course of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;; and
(xi) each Purchased Contract any agreement, other than as contemplated by this Agreement, relating to the sales of securities of the Company to which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with the Company is a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii)party.
(b) Except The Company has delivered or made available to the Parent a complete and accurate copy of each agreement listed in Schedule 2.13 of the Disclosure Schedule. With respect to each agreement so listed, and except as set forth on in Schedule 4.11(b) and other than with respect to 2.13 of the 787 Supply AgreementDisclosure Schedule: (i) each Material Contract the agreement is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller andand in full force and effect; (ii) the agreement will continue to be legal, to Seller’s Knowledgevalid, of binding and enforceable and in full force and effect immediately following the other party or parties thereto and is enforceable Closing in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except the terms thereof as set forth on Schedule 4.11(c) and other than with respect in effect immediately prior to the 787 Supply Agreement: Closing; and (iiii) Seller has the Company is not violated nor, to the knowledge of the Company, is any other party, in breach or breached in any material respect violation of, or committed any material default under, any Material Contract (in each casesuch agreement, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no factis pending or, circumstance or condition existsto the knowledge of the Company, that (is threatened, which, after the giving of notice, with or without notice or lapse of time time, or both) has (i) resulted in otherwise, would constitute a material violation breach or breach default by the Company or, to the knowledge of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respectCompany, any Material Contractother party under such contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 2 contracts
Sources: Agreement and Plan of Merger and Reorganization (Anvex International, Inc.), Merger Agreement (Dynastar Holdings, Inc.)
Contracts. Schedule 6.18 of the Company Disclosure Statement sets forth the following oral or written contracts and other agreements to which the Company or any of its Subsidiaries is a party:
(a) For purposes any agreement (or group of this Agreementrelated agreements, each with the same third party or any of its Affiliates) for the following shall constitute a “Material Contract”:
(i) each Purchased Contract relating to the employment (whether on a full-time, part-time, consulting or other basis) lease of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or personal property providing for which the cost of such severance, termination or relocation payment would exceed $30,000;
(ii) except to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements);
(iii) each Purchased Contract creating or relating to any partnership, limited liability company or joint venture or similar venture or arrangement;
(iv) each Purchased Contract with any customer or production supplier that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure lease payments in excess of One Hundred Thousand Dollars ($2,000,000;
(v100,000) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (Ab) any Affiliate agreement (or group of Seller related agreements for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services, the performance of which involve consideration in excess of One Hundred Thousand Dollars (other than $100,000) per annum; PROVIDED, HOWEVER, that this clause (b) shall not include any employment agreement included pursuant to clause (e) below or excluded from clause (e) below by virtue of the monetary threshold set forth therein;
(c) any agreement concerning a partnership or joint venture;
(d) any agreement (or group of related agreements, with the same third party or any of its Affiliates) under which the Company or any of its Subsidiaries has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of One Hundred Thousand Dollar ($100,000) per annum or under which it has imposed a lien on any of its material assets, tangible or intangible;
(e) any agreement with an employee of Seller) the Company or (B) any of the Persons identified on Schedule 4.11(a)(viiiits Subsidiaries, providing for a base salary per annum in excess of One Hundred Thousand Pounds Sterling ((pound)100,000);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing);
(xf) any Contract, other agreement (or group of related agreements with the primary subject matter same third party) the performance of which is confidentialityinvolves consideration in excess of One Hundred Thousand Dollars ($100,000) per annum; PROVIDED HOWEVER, nondisclosure or similar that this clause (f) shall not include any employment agreement with respect excluded from clause (e) above by virtue of the monetary threshold set forth therein. The foregoing are referred to confidentiality arrangements executed by or on behalf of Seller with hereafter as the "Material Contracts". With respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which createsMaterial Contracts, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii).
(b) Except except as set forth on in Schedule 4.11(b) and other than with respect to 6.18 of the 787 Supply AgreementCompany Disclosure Statement: (i) each Material Contract is all are in full force and effect against the Company or any of its Subsidiaries in accordance with their terms, except that such enforceability may be subject to bankruptcy, insolvency and other similar laws effecting debtors' rights or creditors' rights generally and except that the remedies of specific performance, injunction and other forms of equitable relief may not be available; (ii) each Material Contract constitutes a legal, valid, binding neither the Company nor any of its Subsidiaries and enforceable obligation of Seller and, to Seller’s Knowledge, of the Company's knowledge no other party thereto is, in breach or parties thereto default, and is enforceable in accordance no event has occurred which with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time would constitute a breach or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respectdefault, or committed any material default underpermit termination, any Material Contract (in each casemodification, with or without notice or lapse of time or both).
(d) Other than acceleration, under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contractagreement; (iii) given neither the Company nor any Person of its Subsidiaries has assigned any of its rights or obligations under any of the unilateral right to accelerate the maturity of material obligations pursuant to any Material ContractContracts; or (iv) give neither the Company nor any Person of its Subsidiaries has received any outstanding notice of cancellation or termination in connection with any of them; and (v) neither the right Company nor any of its Subsidiaries is, and to cancelthe Company's knowledge no party thereto is the subject of bankruptcy proceedings, terminate nor has had a trustee appointed on its behalf or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides is insolvent. The Company has delivered to the Parent and Merger Sub a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available as amended to Buyerthe date of this Agreement), except for the Coop Agreements and Conduit Agreements listed on Schedule 6.11 of the Company Disclosure Statement, and a written summary setting forth the terms and conditions of each oral agreement constituting a Material Contract referred to in Schedule 6.18 of the Company Disclosure Statement.
Appears in 2 contracts
Sources: Merger Agreement (Bison Acquisition Corp), Merger Agreement (Entertainment Inc)
Contracts. (a) For purposes of this AgreementAll material Contracts (collectively herein called the “Company Contracts” and individually a “Company Contract”) to which a Target Company is a party, each that are used in the Business are listed on Section 4.12(a) of the following shall constitute a “Material Contract”Disclosure Schedule. In addition, Section 4.12(a) of the Disclosure Schedule includes:
(i) each Purchased Contract relating to the employment (whether on a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract Contracts with customers pursuant to which Seller is a Target Company gathers, processes, treats, fractionates, transports, stores, sells or may become obligated to make any severancepurchases Hydrocarbons or the products therefrom or water, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000provides services related thereto;
(ii) except to any Contracts for the extent included elsewhere in this Section 4.11(a)construction of gathering or other pipeline systems or processing, each Purchased Contract relating in a material manner fractionation or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business (storage facilities other than nondisclosure agreements)any such Contracts requiring aggregate payments of less than $250,000 or which are terminable by the applicable Target Company on sixty (60) days’ notice or less without payment by any Target Company or any penalty;
(iii) each Purchased Contract creating that constitutes a pipeline interconnect agreement or relating to any partnership, limited liability company or joint venture or similar venture or arrangementa facility operating agreement;
(iv) any Contracts (A) for the purchase or sale of any asset, equipment, supplies, goods or property or provision of any service or (B) that grant a right or option to purchase or sell any asset or property or receive services other than, in each Purchased Contract with case, any customer or production supplier that involves, or would reasonably be expected to involve (assuming delivery such Contracts requiring aggregate payments of eighty-four (84) shipsets per year), the payment or expenditure in excess of less than $2,000,000250,000;
(v) each Purchased Contract not any Contracts providing for the lease of any item or items of personal property with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value annual rental expense under such lease in excess of $250,000 in other than any such Contracts which are terminable by the aggregate in applicable Target Company on sixty (60) days’ notice or less without payment by a Target Company or any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar yearpenalty;
(vi) each Seller Contract imposing any materialContracts under which a Target Company has created, explicit restriction on the right incurred, assumed or ability of (A) the Business to (1) compete with, or solicit the services or employment of, guaranteed any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conductedoutstanding Debt;
(vii) each Purchased Contract under which Seller any Contracts between (A) leases a Target Company, on the one hand, and any current or subleases any real property former employee, officer, manager, member or Affiliate of a Target Company, on the other hand, (B) leases a Target Company and any Employee, or subleases (C) a Target Company and one or more of the Members or any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annumtheir respective Employees;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii)collective bargaining Contracts;
(ix) each noteany outstanding futures, debentureswap, bondcollar, indentureput, guaranteecall, loanfloor, credit or financing agreementcap, instrument option, hedging, forward sale or other evidence of, derivative Contracts involving Hydrocarbons or Contract for, Indebtedness of Seller secured by other commodity sales or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing)trading;
(x) any Contractpartnership, the primary subject matter of which is confidentialityjoint venture, nondisclosure strategic alliance or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Businesslimited liability company agreements;
(xi) each Purchased except as contemplated by clauses (i) and (ii) above, any sales, distribution or other similar agreement providing for the sale by any Target Company of materials, supplies, goods, services, equipment or other assets that provides for annual payments to such Target Company of $250,000 or more;
(xii) Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by a Target Company of any operating business or equity interests of any other Person other than the MHA Acquisition;
(xiii) any Contract under which createsa Target Company has made advances or loans or payments to any other Person;
(xiv) any material management Contract or any material Contract with independent contractors or consultants (or similar arrangements) that are not cancelable without penalty or further payment and on not more than thirty (30) days’ notice;
(xv) any employment or consulting agreement or indemnification agreement with any officers, managers, equityholders, employees or may create, an Encumbrance on agents; and
(xvi) any Purchased Asset other Contract not described in an amount or with a value the foregoing clauses (i) through (xvi) pursuant to which the Company has future liability in excess of $50,000; and
250,000 for any year or $1,000,000 in the aggregate and that cannot be terminated by the Company on not more than sixty (xii60) each Purchased Contract set forth on Schedule 4.11(a)(xii)days’ notice without payment or penalty.
(b) Except as set forth on Schedule 4.11(bin Section 4.12(b) of the Disclosure Schedule, all Company Contracts are valid and other than with respect to the 787 Supply Agreement: (i) each Material Contract is binding, in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller and, to Seller’s Knowledge, of against the other party or parties thereto and is enforceable in accordance with its their respective terms, subject only to applicable except as such enforceability may be limited by bankruptcy, insolvency, reorganization and moratorium Laws and or other Laws of general application similar laws affecting or relating to the enforcement of creditors’ rights generallygenerally and the application of general principles of equity (regardless of whether that enforceability is considered in a Proceeding at law or in equity). Except as set forth in Section 4.12(b) of the Disclosure Schedule, each Target Company has performed, in all material respects, all obligations and is not in breach or default, in any material respect, under any Company Contract. Except as set forth in Section 4.12(b) of the Disclosure Schedule, to the Company’s Knowledge, no event has occurred, which after notice or lapse of time, or both, would constitute a material default by a Target Company under any Company Contract or, to the Company’s Knowledge, any other party to any Company Contract.
(c) Except as set forth on Schedule 4.11(cin Section 4.12(c) of the Disclosure Schedule, and other than except for this Agreement, no Target Company is a party to, and the Properties are not subject to any Contract that:
(i) prohibits a Target Company from competing in any line of business or in any geographic area or from soliciting or hiring any person with respect to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and employment;
(ii) requires a Target Company to acquire (by merger, purchase of stock or assets or otherwise) any operating business or material assets or equity interests of any Person;
(iii) provides for the Knowledge deferred payment of Sellerany purchase price including any “earnout” or other contingent fee management;
(iv) grants to a third Person a right of first refusal, no other Person has violated option, preferential right or breached in similar right to acquire Properties or the Business or any material respect, portion thereof;
(v) grants “most favored nation” pricing to a customer or committed any material default under, any Material Contract counterparty;
(in each case, with vi) would require a payment to be made by a Target Company at or without notice or lapse following the Closing as a result of time or both)the consummation of the transactions contemplated hereby;
(vii) involves a prepayment by a counterparty to a Target Company for services to be performed by such Target Company following the Closing; or
(viii) creates Debt for which a Target Company could have liability following the Closing Date.
(d) Other than under Except as set forth in Section 4.12(d) of the 787 Supply Disclosure Schedule, and except for this Agreement, no event or development has occurredTarget Company is a party to, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respectProperties are not subject to, any Material Contract.
(e) Schedule 4.11(e) provides Contract between a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) Target Company and a summary description Member or any of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyerits Affiliates.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Crestwood Midstream Partners LP)
Contracts. (a) For purposes of this Agreement, each Section 2.15 of the Disclosure Schedule lists the following shall constitute written arrangements (including without limitation written agreements) to which the Seller is a “Material Contract”party:
(i) each Purchased Contract relating any written arrangement (or group of related written arrangements) for the lease of personal property from or to the employment (whether on a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of third parties involving more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,00025,000 per year;
(ii) except any written arrangement (or group of related written arrangements) for the purchase or sale of raw materials, commodities, supplies, products or other personal property (including without limitation any written arrangement in which the Seller has granted manufacturing rights, "most favored nation" pricing provisions or marketing or distribution rights relating to the extent included elsewhere in this Section 4.11(aany products or territory, has agreed to purchase a minimum quantity of goods or has agreed to purchase goods exclusively from a certain party), each Purchased Contract relating involving more than $100,000 during the most recent twelve months or involving an obligation in a material manner or primarily excess of $100,000 to be performed after the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)Closing;
(iii) each Purchased Contract creating any written arrangement involving more than $100,000 (or relating group of related written arrangements) for the furnishing or receipt of services (including without limitation any written arrangement in which the Seller has agreed to any partnership, limited liability company purchase a minimum quantity of services or joint venture or similar venture or arrangementhas agreed to purchase services exclusively from a certain party);
(iv) each Purchased Contract with any customer written arrangement establishing a partnership or production supplier that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000joint venture;
(v) each Purchased Contract not with customers any written arrangement (or production suppliers that may not be terminated (without penaltygroup of related written arrangements) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involvingunder which it has created, incurred, assumed, or reasonably anticipated to involveguaranteed (or may create, incur, assume, or guarantee) indebtedness (Aincluding capitalized lease obligations) the payment involving more than $25,000 per year or delivery by under which it has imposed (or to the Business may impose) a Security Interest on any of cash its assets, tangible or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar yearintangible;
(vi) each Seller Contract imposing any material, explicit restriction on the right written arrangement concerning confidentiality or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conductednoncompetition;
(vii) each Purchased Contract any written arrangement under which the consequences of a default or termination, any director, officer or member of management of the Seller (A) leases has reason to believe, could have a material adverse effect on the assets, business, financial condition, results of operations or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess future prospects of $100,000 per annum;the Seller; and
(viii) each Purchased Contract with any written arrangement (or group of related written arrangements) (A) any Affiliate of Seller not described (other than any employee of Sellerwithout regard to dollar amount) or in paragraphs (i) through (vii) above and (B) any either involving more than $50,000 or not entered into in the Ordinary Course of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing);
(x) any Contract, the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii).
(b) Except The Seller has delivered to the Buyer a correct and complete copy of each written arrangement (as set forth on Schedule 4.11(bamended to date) and other than with listed in Section 2.15 of the Disclosure Schedule. With respect to the 787 Supply Agreementeach written arrangement so listed: (i) each Material Contract the written arrangement is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation and in full force and effect; (ii) the written arrangement is assignable by the Seller to the Buyer without the consent or approval of Seller and, to Seller’s Knowledge, any party (except as set forth in Section 2.15 of the other party or parties thereto Disclosure Schedule) and is will continue to be legal, valid, binding and enforceable and in full force and effect immediately following the Closing in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except the terms thereof as set forth on Schedule 4.11(c) and other than with respect in effect prior to the 787 Supply Agreement: Closing; and (iiii) Seller to the knowledge of the Seller, no party is in breach or default, and no event has not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, occurred which with or without notice or lapse of time would constitute a breach or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Sellerpermit termination, no other Person has violated or breached in any material respectmodification, or committed any material default underacceleration, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in written arrangement. The Seller is not a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant party to any Material Contract; oral contract, agreement or (iv) give any Person other arrangement which, if reduced to written form, would be required to be listed in Section 2.15 of the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Disclosure Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material under the terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to BuyerSection 2.15.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Dynatech Corp), Asset Purchase Agreement (Telxon Corp)
Contracts. (a) For purposes Section 3.11(a) of the Merger Partner Disclosure Schedule lists the following agreements (written or oral) to which Merger Partner or any of its Subsidiaries is a party as of the date of this Agreement, each of the following shall constitute a “Material Contract”:
(i) each Purchased Contract relating any agreement (or group of related agreements) for the lease of personal property from or to the employment (whether on third parties providing for lease payments in excess of $150,000 per annum or having a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more remaining term longer than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000six months;
(ii) except to any agreement (or group of related agreements) that is not terminable without cause by Merger Partner with less than 120 days notice without penalty, including the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license payment of any Intellectual Property material termination fee or refund of amounts previously received, and that is for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, (B) which involves an aggregate of more than $150,000 or (C) in which Merger Partner or any of its Subsidiaries has granted manufacturing rights, “most favored nation” pricing provisions or marketing or distribution rights relating to the conduct any products or territory or has agreed to purchase a minimum quantity of the Business (other than nondisclosure agreements)goods or services or has agreed to purchase goods or services exclusively from a particular party;
(iii) each Purchased Contract creating any agreement concerning the establishment or relating to any operation of a partnership, limited liability company or joint venture or similar venture or arrangementlimited liability company;
(iv) each Purchased Contract with any customer agreement (or production supplier that involvesgroup of related agreements) under which it has created, incurred, assumed or would reasonably be expected to involve guaranteed (assuming delivery or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $150,000 or under which it has imposed (or may impose) a Lien on any of eighty-four (84) shipsets per year)its assets, the payment tangible or expenditure in excess of $2,000,000intangible;
(v) each Purchased Contract not with customers any agreement for the disposition of any significant portion of the assets or production suppliers that may not be terminated business of Merger Partner or any of its Subsidiaries (without penalty) by Seller within thirty (30) days after the delivery other than sales of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 products in the aggregate in Ordinary Course of Business) or any calendar year; (B) the performance by or agreement for the Business acquisition of services in an amount the assets or having a value in excess business of $250,000 any other entity (other than purchases of inventory or components in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business Ordinary Course of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar yearBusiness);
(vi) each Seller Contract imposing any material, explicit restriction on the right employment or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conductedconsulting agreement;
(vii) each Purchased Contract under which Seller (A) leases any agreement involving any current or subleases any real property former officer, director or (B) leases stockholder of Merger Partner or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annuman Affiliate thereof;
(viii) each Purchased Contract with (A) any Affiliate agreement under which the consequences of Seller (other than any employee of Seller) a default or (B) any of the Persons identified on Schedule 4.11(a)(viii)termination would reasonably be likely to have a Merger Partner Material Adverse Effect;
(ix) each noteany agreement which contains any provisions requiring Merger Partner or any of its Subsidiaries to indemnify any other party (excluding indemnities contained in agreements for the purchase, debenture, bond, indenture, guarantee, loan, credit sale or financing agreement, instrument or other evidence of, or Contract for, Indebtedness license of Seller secured by or providing Encumbrances on products entered into in the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financingOrdinary Course of Business);
(x) any Contract, agreement that could reasonably be expected to have the primary subject matter effect of which is confidentiality, nondisclosure prohibiting or similar agreement with respect impairing the conduct of the business of Merger Partner or any of its Subsidiaries or Public Company or any of its Subsidiaries as currently conducted and as currently proposed to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Businessbe conducted;
(xi) each Purchased Contract any agreement under which createsMerger Partner or any of its Subsidiaries is restricted from selling, licensing or otherwise distributing any of its technology or products, or may createproviding services to, an Encumbrance on customers or potential customers or any Purchased Asset class of customers, in an amount any geographic area, during any period of time or with any segment of the market or line of business;
(xii) any agreement under which Merger Partner or any of its Subsidiaries has licensed any material Intellectual Property to or from any third party (excluding currently-available, off-the-shelf software programs that are licensed by Merger Partner or any of its Subsidiaries pursuant to “shrink wrap” licenses under which aggregate fees and royalties paid to the licensor do not exceed $50,000 annually);
(xiii) any agreement that would entitle any third party to receive a value in excess license or any other right to intellectual property of $50,000Public Company or any of Public Company’s Affiliates following the Closing; and
(xiixiv) each Purchased Contract set forth on Schedule 4.11(a)(xii)any other agreement (or group of related agreements) (A) involving more than $150,000 or (B) not entered into in the Ordinary Course of Business.
(b) Except as set forth on Schedule 4.11(b) Merger Partner has provided or made available to Public Company a complete and other than with accurate copy of each agreement listed in Section 3.10 or Section 3.11 of the Merger Partner Disclosure Schedule. With respect to the 787 Supply Agreementeach agreement so listed: (i) each Material Contract the agreement is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller andand in full force and effect; (ii) the agreement will continue to be legal, to Seller’s Knowledgevalid, of binding and enforceable and in full force and effect immediately following the other party or parties thereto and is enforceable Closing in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except the terms thereof as set forth on Schedule 4.11(c) and other than with respect in effect immediately prior to the 787 Supply Agreement: Closing; and (iiii) Seller has not violated neither Merger Partner nor any of its Subsidiaries nor, to the knowledge of Merger Partner, any other party, is in breach or breached in any material respect violation of, or committed any material default under, any Material Contract (in each casesuch agreement, and no event has occurred, is pending or, to the knowledge of Merger Partner, is threatened, which, with or without notice or lapse of time time, or both), nor is it in receipt would constitute a breach, violation or default by Merger Partner or any of any written Claim of such default or breach; and (ii) its Subsidiaries or, to the Knowledge knowledge of SellerMerger Partner, any other party under such agreement, except for breaches, violations or defaults that, individually or in the aggregate, have not had, and are not reasonably likely to have, a Merger Partner Material Adverse Effect. Neither Merger Partner nor any of its Subsidiaries has received any notice in writing from any other party, and, to the knowledge of Merger Partner, no other Person party has violated or breached in any material respectthreatened, or committed any material default underto terminate, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate fail to renew or modifyotherwise materially modify any such agreements the loss of which, individually or in any material respectthe aggregate, any is reasonably likely to have a Merger Partner Material ContractAdverse Effect.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 2 contracts
Sources: Merger Agreement (Cornerstone BioPharma Holdings, Inc.), Merger Agreement (Critical Therapeutics Inc)
Contracts. (a) For purposes of this Agreement, each Section 3.17(a) of the following shall constitute Company Disclosure Schedule sets forth a “Material Contract”:true and complete list, and the Company has made available to the Subscriber prior to the date hereof true and complete copies, of each Contract to which any member of the Company Group is a party that (other than, in each case, any Contract between the Company or any wholly owned Company Subsidiary, on the one hand, and any other wholly owned Company Subsidiary, on the other hand):
(i) each Purchased Contract relating to the employment (whether on a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000Affiliate Contract;
(ii) except is a lease, sublease, license, occupancy agreement, concession or other Contract with respect to any Leased Real Property (the “Real Property Leases”) that involves aggregate annual payments in excess of $500,000;
(iii) is a Contract involving aggregate consideration in excess of $3,000,000 per year (whether payable or receivable by the Company Group) and that cannot be cancelled by the Company Group without penalty or without more than ninety (90) days’ notice;
(iv) is a partnership, joint venture or similar arrangement;
(v) contains (A) covenants of the Company Group purporting to limit either the type or line of business in which the Company Group may engage or the geographic area in which any of them may so engage, (B) “take or pay,” “requirements” or other similar provisions obligating a Person to provide the quantity of goods or services required by another Person or (C) pricing or margin provisions that provide “most favored nation” or similar provisions with respect to pricing;
(vi) evidences the creation, incurrence, assumption or guarantee of Indebtedness of the Company Group in an amount in excess of $1,000,000, or creation or incurrence of any Lien on any material property or asset of the Company Group;
(vii) grants any rights of first refusal, rights of first negotiation or other similar rights to any Person with respect to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, usesale, transfer, development, ownership, sharing pledge or license disposition of any business, property or asset, or any Equity Security, of the Company Group;
(viii) provides for the acquisition or disposition of any business (or material properties or assets) of or by the Company Group (including Equity Securities) (whether by merger, sale of Equity Securities, sale of assets, or otherwise), other than (1) Contracts entered prior to March 31, 2020 with no remaining material obligations, (2) any Contract that provides for the acquisition or disposition of inventory or supplies of or by the Company or any Company Subsidiary in the ordinary course of business and (3) nonexclusive licenses of Intellectual Property to any customer of the Company or any Company Subsidiary in the ordinary course of business;
(ix) is a settlement Contract which materially affects the conduct of the Company Group’s businesses;
(x) imposes exclusivity (other than non-competition covenants, which are addressed by clause (v) above) or non-solicitation obligations on the Company Group, except for Contracts entered into in the ordinary course of business which impose exclusivity or non-solicitation obligations that are not material to the Company Group;
(xi) requires the Company Group to make any capital commitment or capital expenditure in excess of $1,000,000 during any twelve -month period;
(xii) is (A) a Contract pursuant to which the Company Group is granted rights under Intellectual Property of a third party that is material to the conduct of businesses of the Business (Company Group other than nondisclosure agreements);Excluded Inbound Licenses, (B) a Contract pursuant to which the Company Group has granted rights under any Company Owned IP that is material to the business of the Company Group to any third parties, excluding Excluded Outbound Licenses, or (C) a Contract to which the Company Group is a party or bound, which restricts, in any material respect, the right of the Company Group to use or exploit any Company Owned IP which is material to the businesses of the Company Group, excluding Excluded Inbound Licenses and Excluded Outbound Licenses; or
(iiixiii) each Purchased is a Contract creating with a Significant Supplier, Significant Customer or relating to any partnershipSignificant Distributor (each, limited liability company as defined below) or joint venture a Governmental Entity, other than (A) purchase orders entered into in the ordinary course of business or similar venture (B) requests for quotations or arrangement;development Contracts with Significant Customers entered into in the ordinary course of business.
(ivb) each Purchased Each Contract listed (or required to be listed) on Section 3.17(a) of the Company Disclosure Schedule (and any Contract entered into after the date hereof in accordance with, and not in violation of, the provisions of Section 5.01 that would have been listed (or required to be listed) on Section 3.17(a) of the Company Disclosure Schedule if it was entered into prior to the date hereof) is referred to herein as a “Company Material Contract.” No member of the Company Group is in breach of or default under the terms of any Company Material Contract (and the Company Group has not received any written notice regarding any such breach or default), and, to the knowledge of the Company, no event has occurred that with notice or lapse of time or both would constitute a breach or default thereunder by any customer member of the Company Group, where such breach or production supplier that involvesdefault, individually or together with other such breaches or defaults, has been or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (Company Group, taken as a whole. To the knowledge of the Company, no other than nondisclosure agreements); or (B) Buyer party to own and operate the 787 Program as currently conducted;
(vii) each Purchased any Company Material Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, is in whole breach of or in partdefault under the terms of any Company Material Contract where such breach or default, from any individually or together with other Person involving lease payments such breaches or other consideration in excess of $100,000 per annum;
(viii) each Purchased defaults, has been or would reasonably be expected to be material to the Company Group, taken as a whole. Each Company Material Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any is a valid and binding obligation of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, Company Group and each Purchased Contract for borrowed money (including for future loans, credit or financing);
(x) any Contract, the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii).
(b) Except as set forth on Schedule 4.11(b) and other than with respect to the 787 Supply Agreement: (i) each Material Contract is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller and, to Seller’s Knowledge, of the other party or parties thereto and is enforceable in accordance with its termseffect, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; Bankruptcy and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both)Equity Exception.
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 2 contracts
Sources: Sale and Subscription Agreement (Allegro Microsystems, Inc.), Sale and Subscription Agreement (Allegro Microsystems, Inc.)
Contracts. (a) For purposes Section 2.12 of the Company Disclosure Schedule lists the following agreements (written or oral) to which the Company or any Company Subsidiary is a party as of the date of this Agreement, each of Agreement (other than the following shall constitute a “Material Contract”:Transaction Documentation (as hereinafter defined)):
(i) each Purchased Contract relating any agreement (or group of related agreements) for the lease of personal property from or to third parties which provides for lease payments in excess of $250,000 per annum and which has a remaining term longer than 12 months and is not cancellable without penalty by the employment Company on sixty (whether on a full-time, part-time, consulting 60) days or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000less prior written notice;
(ii) except any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, is not cancellable without penalty by the Company on sixty (60) days or less prior written notice and involves more than the sum of $250,000, or (B) in which the Company or any Company Subsidiary has granted manufacturing rights, “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in any products or territory or has agreed to purchase a material manner minimum quantity of goods or primarily services or has agreed to the acquisition, use, transfer, development, ownership, sharing purchase goods or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)services exclusively from a certain party;
(iii) each Purchased Contract creating or relating any agreement which, to any partnershipthe knowledge of the Company, limited liability company or establishes a material joint venture or similar venture or arrangementlegal partnership;
(iv) each Purchased Contract any agreement that purports to limit in any material respect the right of the Company to engage in any line of business, or to compete with any customer person or production supplier that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure operate in excess of $2,000,000any geographical location;
(v) each Purchased Contract any agreement involving any officer, director or stockholder of the Company or any affiliate (as defined in Rule 12b-2 under the Exchange Act) thereof (an “Affiliate”) (other than stock subscription, stock option, restricted stock, warrant or stock purchase agreements the forms of which have been made available to Parent);
(vi) any agreement or commitment for capital expenditures in excess of $250,000, for a single project (it being represented and warranted that the liability under all undisclosed agreements and commitments for capital expenditures does not with customers exceed $1,000,000 in the aggregate for all projects); and
(vii) any other agreement (or production suppliers that may not be terminated (without penaltygroup of related agreements) by Seller within thirty (30) days after under which the delivery of a termination notice by Seller and contemplating Company is obligated to make payments or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value incur costs in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing);
(x) any Contract, the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii).
(b) Except The Company has delivered or made available to the Parent a complete and accurate copy of each agreement listed in Section 2.12 of the Company Disclosure Schedule. With respect to each agreement so listed, and except as set forth on Schedule 4.11(b) and other than with respect to in Section 2.12 of the 787 Supply AgreementCompany Disclosure Schedule: (i) each Material Contract the agreement is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller andthe Company and in full force and effect, to Seller’s Knowledge, of the other party or parties thereto and is enforceable in accordance with its terms, subject only to except as such enforceability may be limited under applicable bankruptcy, insolvencyinsolvency and similar laws, reorganization and moratorium Laws and other Laws of general application rules or regulations affecting enforcement of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(c) and other than with respect remedies generally and to the 787 Supply Agreement: (i) Seller has not violated general principles of equity whether applied in a court of law or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse a court of time or both), nor is it in receipt of any written Claim of such default or breachequity; and (ii) neither the Company nor any Company Subsidiary nor, to the Knowledge knowledge of Sellerthe Company, no any other Person has violated party, is in breach or breached in any material respectviolation of, or committed any material default under, any Material Contract (in each casesuch agreement, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, and no event or development has occurred, and no factis pending or, circumstance or condition existsto the knowledge of the Company, that (is threatened, which, after the giving of notice, with or without notice or lapse of time time, or both) has (i) resulted in otherwise, would constitute a material breach or default by the Company or any Company Subsidiary or, to the knowledge of the Company, any other party under such contract, except for any breach, violation or breach of any provision of any default that has not had and would not reasonably be anticipated to have a Company Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material ContractAdverse Effect.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 2 contracts
Sources: Merger Agreement (ViewRay, Inc.), Merger Agreement (ViewRay, Inc.)
Contracts. (a) For purposes Schedule 4.14(a) sets forth a true, complete and accurate list, as of the date of this Agreement, each of all of the following shall constitute a Contracts as amended to date which are currently in effect (collectively, “Material ContractContracts”:):
(i) each Purchased Contract relating to all Contracts that require annual payments or expenses incurred by, or annual payments or income to, the employment Company Group of US$200,000 or more (whether on a full-timeother than standard purchase and sale orders entered into in the ordinary course of business consistent with past practices) including sales, part-timeadvertising, consulting agency, sales promotion, market research, marketing or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000similar contracts;
(ii) except to each Contract with any current employee of the extent included elsewhere in this Section 4.11(a)Company Group (A) which has continuing obligations for payment of an annual compensation of at least US$200,000, each Purchased Contract relating in a material manner and which is not terminable for any reason or primarily to the acquisition, use, transfer, development, ownership, sharing or license no reason upon reasonable notice without payment of any Intellectual Property material penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to the conduct such employee in excess of the Business US$60,000 (other than nondisclosure agreementsCOBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit in excess of US$60,000 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;
(iii) each Purchased Contract all Contracts creating or relating to any partnershipa joint venture, strategic alliance, limited liability company or joint venture or similar venture or arrangementpartnership arrangement to which a member of the Company Group is a party;
(iv) each Purchased Contract with all Contracts relating to any customer acquisitions or production supplier that involves, or would reasonably be expected to involve (assuming delivery dispositions of eighty-four (84) shipsets per year), the payment or expenditure assets of value in excess of $2,000,000US$100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practices);
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after all IP Contracts, separately identifying all such IP Contracts under which the delivery of a termination notice by Seller Company is obligated to pay royalties thereunder and contemplating or involving, or reasonably anticipated all such IP Contracts under which the Company is entitled to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar yearreceive royalties thereunder;
(vi) each Seller Contract imposing all Contracts limiting the freedom of the Company Group to compete in any materialline of business or industry, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; Person or (4) develop, use, sell, enforce or license in any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conductedgeographic area;
(vii) each Purchased Contract under which Seller (A) leases all Contracts providing for guarantees, indemnification arrangements and other hold harmless arrangements made or subleases any real property provided by the Company, including all ongoing agreements for repair, warranty, maintenance, service, indemnification or (B) leases or subleases any buildingssimilar obligations, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annumthan Standard Contracts;
(viii) each Purchased Contract all Contracts with (A) or pertaining to the Company Group to which any Affiliate of Seller (the Company Group is a party, other than any employee of Seller) Contracts relating to such Affiliate’s status as a Company Securityholder or (B) Contracts entered into on arms’ length terms by which any of the Persons identified on Schedule 4.11(a)(viii)Company Group company provides goods or services to any other Company Group company;
(ix) each noteall Contracts relating to property or assets (whether real or personal, debenture, bond, indenture, guarantee, loan, credit tangible or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on intangible) in which the Purchased Assets, and each Purchased Contract for borrowed money Company Group holds a leasehold interest (including for future loans, credit or financing)the Lease) and which involve payments to the lessor thereunder in excess of US$200,000 per year;
(x) any Contract, all Contracts creating or otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the primary subject matter of which is confidentiality, nondisclosure aggregate that are valued at US$250,000 or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Businessgreater;
(xi) each Purchased Contract which creates, all Contracts relating to the voting or may create, an Encumbrance on any Purchased Asset 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);
(xii) all Contracts not cancellable by the Company Group with no more than ninety (90) days’ notice if the effect of such cancellation would result in an amount or with a value monetary penalty to the Company Group in excess of $50,000US$200,000 per the terms of such Contract;
(xiii) all Contracts that may be terminated, or the provisions of which may be altered, as a result of the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement and which constitute Material Contracts as defined by the other subsections of this Section 4.14(a);
(xiv) 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
(xiixv) each Purchased Contract set forth on Schedule 4.11(a)(xii)all collective bargaining agreements or other agreement with a labor union, labor organization or works council or other representative of a group of employees.
(b) Except as set forth on Schedule 4.11(b) and other than with respect to the 787 Supply Agreement: Each Material Contract is (i) each Material Contract is a valid and binding agreement, (ii) in full force and effect and (iiiii) each Material Contract constitutes a legal, valid, binding enforceable by and enforceable obligation of Seller against the Company Group and, to Sellerthe Company’s Knowledge, each counterparty that is party thereto, subject, in the case of this clause (iii), to the Enforceability Exceptions. Neither the Company Group nor, to the Company’s Knowledge, any other party to a Material Contract is in material breach or parties thereto and is enforceable in accordance 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 terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws rights or obligations under any Material Contract or granted any power of general application affecting enforcement of creditors’ rights generallyattorney with respect thereto.
(c) Except as set forth on Schedule 4.11(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 than with respect to instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the 787 Supply Agreement: (i) Seller has transactions contemplated by this Agreement shall not violated cause or breached result in any material respect or committed any material an event of default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given instruments or Contracts establishing or evidencing any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material ContractIndebtedness.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 2 contracts
Sources: Merger Agreement (Aerkomm Inc.), Merger Agreement (IX Acquisition Corp.)
Contracts. (a) For purposes of this Agreement, each Except as listed in Section 3.19(a) of the following shall constitute Company Disclosure Letter, neither the Company nor any Company Subsidiary is a “Material Contract”party to or bound by:
(i) each Purchased Contract any agreement relating to the employment Indebtedness (whether on a full-time, part-time, consulting other than agreements among direct or other basisindirect wholly owned Company Subsidiaries) in excess of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,00010,000;
(ii) except to the extent included elsewhere in this Section 4.11(a)any joint venture, each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements);
(iii) each Purchased Contract creating or relating to any partnership, limited liability company or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership or joint venture material to the Company or similar venture any of its Subsidiaries;
(iii) any agreement or arrangementseries of related agreements, including any option agreement, relating to the acquisition or disposition of any business or material real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) each Purchased Contract except as set forth under the caption “Related Party Revenue” in footnote 2 and in footnotes 6 and 7 to the financial statements contained in the Company’s Form 10-Q for the quarter ending September 30, 2007, except as set forth under the caption “Certain Relationships and Related Transactions” in the Company’s definitive proxy statement on Form 14A for the Company’s June 20, 2007 annual meeting of stockholders, and except for Warrants disclosed in Section 3.3(a) of the Company Disclosure Letter, any agreement entered into with (A) any customer Person directly or production supplier that involvesindirectly owning, controlling or would reasonably be expected holding with power to involve vote, 5% or more of the outstanding voting securities of the Company or any Company Subsidiary, (assuming delivery B) any Person 5% or more of eighty-four the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by the Company or any Company Subsidiary or (84C) shipsets per year), any current or former director or officer of the payment Company or expenditure any Company Subsidiary or any “associates” or members of the “immediate family” (as such terms are respectively defined in excess Rule 12b-2 and Rule 16a-1 of $2,000,000the Exchange Act) of any such director or officer;
(v) each Purchased Contract not with customers any agreement (including any exclusivity agreement) that purports to limit or production suppliers that may not be terminated restrict in any material respect either the type of business in which the Company or the Company Subsidiaries (without penalty) by Seller within thirty (30) days or, after the delivery Effective Time, the Surviving Corporation or its Subsidiaries) may engage or the manner or locations in which any of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate them may so engage in any calendar year; business (Bincluding any covenant not to compete or not to solicit employees) or which could require the performance by disposition of any material assets or for line of business of the Business of services in an amount Company or having a value in excess of $250,000 in the aggregate in any calendar year; Company Subsidiaries or, after the Effective Time, the Surviving Corporation or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar yearits Subsidiaries;
(vi) each Seller Contract imposing any materialsales, explicit restriction on the right or ability of (A) the Business to (1) compete withdistribution, or solicit the services or employment ofagency, any other Person; (2) sell any product commission-based or other Assetsimilar agreement providing for the sale by the Company or any Company Subsidiary of materials, supplies, goods, services, equipment or perform other assets involving payments to or by the Company or any services anywhere Company Subsidiary in excess of $100,000 in the world; (3) acquire any product aggregate or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property that are otherwise material to the Business (other than nondisclosure agreements); or (B) Buyer to own Company and operate the 787 Program Company Subsidiaries taken as currently conducteda whole;
(vii) each Purchased Contract under other than agreements with content suppliers and agreements pursuant to which Seller (A) leases the Company received or subleases made, or reasonably expects to receive or make, payment of less than $50,000 in any real property or (B) leases or subleases calendar year, any buildingsagreement with a term longer than one year that cannot be cancelled upon 60 days notice without any material penalty, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments premium or other consideration in excess liability or that provides for continuing indemnification obligations of $100,000 per annumthe Company or any of its Subsidiaries;
(viii) each Purchased Contract any agreement with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii)Governmental Entity;
(ix) each noteany agreement relating to any interest rate, debenture, bond, indenture, guarantee, loan, credit currency or financing agreement, instrument commodity derivatives or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing)hedging transaction;
(x) any Contract, agreement (including keepwell agreement) under which (A) any Person has directly or indirectly guaranteed any liabilities or obligations of the primary subject matter Company or any Company Subsidiary or (B) the Company or any Company Subsidiary has directly or indirectly guaranteed liabilities or obligations of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf any other Person (in each case other than endorsements for the purpose of Seller with respect to collection in the Business pursuant to which any third party owes an obligation ordinary course of confidentiality to Seller in relation to the Businessbusiness);
(xi) each Purchased Contract which creates, any “take-or-pay” agreements or may create, an Encumbrance on any Purchased Asset in an amount agreements with “most-favored nations” pricing or with a value in excess of $50,000other terms; andor
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii)any other agreement the termination or breach of which or the failure to obtain consent in respect of which is reasonably likely to result in a Company Material Adverse Effect.
(b) Except The agreements, commitments, arrangements and plans listed or required to be listed in Section 3.19(a) of the Company Disclosure Letter, together with the Intellectual Property Licenses listed in Section 3.18(j), are referred to herein as set forth on Schedule 4.11(b) the “Company Contracts”. Each Company Contract is a valid and other than with respect to binding agreement of the 787 Supply Agreement: (i) each Material Contract Company or a Company Subsidiary, as the case may be, and is in full force and effect and (ii) each Material Contract constitutes a legaleffect, valid, binding and enforceable obligation of Seller and, to Seller’s Knowledge, of the other party or parties thereto and is enforceable in accordance with its terms, subject only to applicable except as such enforceability may be limited by bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application similar laws affecting the enforcement of creditors’ creditors rights generally.
and by general principles of equity (c) Except as set forth on Schedule 4.11(c) regardless of whether enforceability is considered in a proceeding at law or in equity), and other than with respect none of the Company, any Company Subsidiary or, to the 787 Supply Agreement: (i) Seller has not violated knowledge of the Company, any other party thereto is in default or breached breach in any material respect under the terms of, or committed has provided any material default undernotice of any intention to terminate, any Material such Company Contract (in each caseand, to the knowledge of the Company, no event or circumstance has occurred, or will occur by reason of this Agreement or the consummation of any of the Transactions contemplated hereby, that, with or without notice or lapse of time or both), nor is it would constitute any event of default thereunder or would result in receipt a termination thereof. True, correct and complete copies of any written Claim of (i) each such default or breach; Company Contract (including all modifications and amendments thereto and waivers thereunder) and (ii) all form contracts, agreements or instruments used in and material to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has Business have been made available to BuyerParent.
Appears in 2 contracts
Sources: Merger Agreement (Amazon Com Inc), Merger Agreement (Audible Inc)
Contracts. (a) For purposes of this Agreement, each Except as set forth in Section 3.12(a) of the following shall constitute Company Disclosure Letter, neither the Company, nor any Subsidiary, nor any Affiliated PC is a “Material Contract”party to, nor is any of their respective properties or assets bound or affected by, any agreements, contracts, commitments, licenses (or sublicenses) or other instruments or obligations, whether written or oral, that:
(i) each Purchased Contract relating are or would be required to be filed by the employment (whether Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed by the Company on a fullCurrent Report on Form 8-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000K;
(ii) except with respect to a joint venture, partnership, limited liability or other similar agreement or arrangement, relate to the extent included elsewhere formation, creation, operation, management or control of any partnership or joint venture that is material to the business of the Company and the Subsidiaries and Affiliated PCs, taken as a whole;
(iii) relate to indebtedness for borrowed money or any capitalized lease and having an outstanding principal amount, individually or in this Section 4.11(athe aggregate, in excess of $200,000;
(iv) were entered into after December 31, 2007 or not yet consummated, and involve the acquisition from another person or disposition to another Person, directly or indirectly (by merger or otherwise), each Purchased of assets or capital stock or other equity interests of another Person for aggregate consideration under such Contract relating (or series of related Contracts), individually or in the aggregate, in excess of $250,000 (other than acquisitions or dispositions of inventory in the ordinary course of business);
(v) relate to an acquisition, divestiture, merger or similar transaction that contains representations, covenants, indemnities or other obligations (including indemnification, “earn-out” or other contingent obligations), that are still in effect and, individually or in the aggregate, could reasonably be expected to result in payments in excess of $250,000;
(vi) other than an acquisition subject to clause (v) above, obligate the Company to make any capital commitment or capital expenditure, other than acquisitions of inventory (including pursuant to any joint venture), individually or in the aggregate, in excess of $250,000;
(vii) are guaranties, indemnities, surety bonds, commitments, and other similar primary, direct or contingent financial obligations whereby the Company or its Subsidiaries or Affiliated PCs may be liable or obligated for a material manner debt or primarily obligation of another (including without limitation all guaranties with respect to Company Leases);
(viii) relates to the acquisition, use, transfer, development, ownership, licensing or sharing or license of any Intellectual Property or any other agreement affecting the ability of the Company or any of its Subsidiaries or Affiliated PCs to use or disclose any Intellectual Property, other than license agreements for off the shelf software that is generally commercially available and less than $50,000;
(ix) provide for aggregate commitments by the Company and/or its Subsidiaries or Affiliated PCs of more than $500,000 over the remaining term of such contract;
(x) would prohibit or materially delay the consummation of the Merger;
(xi) are otherwise material to the conduct of the Business (other than nondisclosure agreements)Company and its Subsidiaries and Affiliated PCs, taken as a whole;
(iiixii) each Purchased Contract creating or relating to any partnership, limited liability company or joint venture or similar venture or arrangement;
(iv) each Purchased Contract are agreements with any customer employee of any of the Company, a Subsidiary or production supplier that involvesan Affiliated PC creating severance, stock, stock option deferred compensation, severance or any similar obligations for the Company, a Subsidiary or an Affiliated PC, or would reasonably be expected to involve (assuming delivery requiring payment of eighty-four (84) shipsets per year), the payment or expenditure total annual compensation in excess of $2,000,000100,000;
(vxiii) each Purchased Contract not are collective bargaining agreements;
(xiv) are settlements, conciliation or similar agreements with customers any Governmental Authority or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days pursuant to which, after the delivery execution date of a termination notice by Seller and contemplating this Agreement, the Company or involving, any of its Subsidiaries or reasonably anticipated Affiliated PCs will be required to involve, (A) the payment or delivery by or to the Business of cash or other pay consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year100,000;
(vixv) each Seller Contract imposing any material, explicit restriction on the right or ability of relate to an Affiliate Transaction;
(xvi) are: (A) by and between or among the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset Company or any services from of its Subsidiaries on the one hand and any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to of the Business (other than nondisclosure agreements)Affiliated PCs on the other; or (B) Buyer to own by and operate between or among the 787 Program as currently conductedCompany, any of its Subsidiaries, or any of the Affiliated PCs on the one hand, and any third party provider of all or any portion of the technical or professional component of healthcare services;
(viixvii) each Purchased Contract under are by and between or among the Company, any of its Subsidiaries, any of the Affiliated PCs, and any Qualified Shareholder; or
(xviii) are by and between or among the Company, any of its Subsidiaries, any of the Affiliated PCs, and any third party employer, pursuant to which Seller Company, any of its Subsidiaries, and/or any Affiliated PC: (A) leases arranges for or subleases any real property or provides for the adequate staffing of physicians and other professional personnel at such third party employer’s-sponsored healthcare clinics; (B) leases or subleases any buildingsagrees to assist such third party employer in the administration, structuresmanagement and/or operation of employee health programs; and/or (C) agrees to assist such third party employer in the administration, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess management and/or operation of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing);
(x) any Contract, the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii)employer-sponsored pharmacy.
(b) Except Each Contract disclosed or required to be disclosed in Section 3.12(a) of the Company Disclosure Letter is referred to herein as set forth on Schedule 4.11(b) and other than with respect a “Company Material Contract.” The Company has made available to the 787 Supply Agreement: (i) Buyer a true, complete and correct copy of each Company Material Contract is in full force and effect and (ii) each Material Contract constitutes a legalContract, validincluding any amendments, binding and enforceable obligation of Seller and, to Seller’s Knowledge, of the other party supplements or parties thereto and is enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generallymodifications thereto.
(c) Except as set forth in Section 3.12(c) of the Company Disclosure Letter, each Company Material Contract is valid and binding on Schedule 4.11(c) the Company and other than with respect any of its Subsidiaries and any Affiliated PCs to the 787 Supply Agreement: (i) Seller has not violated extent such Subsidiary or breached in any material respect or committed any material default underAffiliated PC is a party thereto, any Material Contract (in each caseas applicable, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Sellerthe Company, no each other Person has violated party thereto, and is in full force and effect and enforceable in accordance with its terms, except where the failure to be valid, binding, enforceable and in full force and effect, individually or breached in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect. Neither the Company, nor any material respectof its Subsidiaries, or committed nor any material default underAffiliated PC, nor, to the Company’s Knowledge, any other party to any Company Material Contract is in violation of or in default under (in each casenor does there exist any condition which, with or without notice or lapse upon the passage of time or the giving of notice or both), would cause such a violation of or default under) or has failed to perform under any Company Material Contract, except for violations, defaults and failures to perform that, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect. Each Company Material Contract fairly and accurately describes in all material respects all of the duties, obligations and responsibilities of the Company, each of its Subsidiaries and the Affiliated PCs with respect thereto.
(d) Other than under Except for employment-related Contracts filed or incorporated by reference as an exhibit to a Company SEC Document filed prior to the 787 Supply Agreementdate hereof or Company Employee Plans, no event or development has occurred, Section 3.12(c) of the Company Disclosure Letter sets forth a correct and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a complete list of all written Material the Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), that are in each case existence as of the date of this AgreementAgreement under which the Company has any existing or future material liabilities between the Company or any of its Subsidiaries, on the one hand, and, on the other hand, any (i) present officer or director of either the Company or any of its Subsidiaries or any person that has served as such an officer or director or any of such officer’s or director’s immediate family members (excluding any person that served as a director or officer of any Subsidiary prior to its acquisition by the Company, and such person’s immediate family members, provided that such Person did not continue to serve as a director or officer after the date of such acquisition), (ii) record or beneficial owner of more than 5% of the Shares as of the date hereof, or (iii) to the Knowledge of the Company, any Affiliate of any such officer, director or owner (other than the Company or any of its Subsidiaries) (each, an “Affiliate Transaction”). A The Company has provided to Buyer true, correct and complete copy copies of each such written Material Contract or other relevant documentation (including all any amendments or modifications thereto) has been made available to Buyerproviding for each Affiliate Transaction.
Appears in 2 contracts
Sources: Merger Agreement (I Trax Inc), Merger Agreement (Walgreen Co)
Contracts. (a) For purposes of this Agreement, each Schedule 5.10(a) sets forth all of the following shall constitute a Contracts as of the date of this Agreement (the “Material ContractContracts”:
): (i) each Purchased any Contract relating to between an Acquired Company, on the employment (whether on a full-time, part-time, consulting or other basis) of any Employee of the Businessone hand, and any “stay pay,” terminationAffiliate of either Acquired Company or the Seller, change of control or on the other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000;
hand; (ii) except to the extent included elsewhere in this Section 4.11(a)any Contract that provides for gathering, each Purchased Contract relating in a material manner transportation, marketing, processing, treating or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements);
storage services; (iii) each Purchased any Contract creating or relating to any partnership, limited liability company or joint venture or similar venture or arrangement;
(iv) each Purchased Contract with any customer or production supplier that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, provides for (A) the payment construction or delivery by or to the Business operation of cash processing plants, gathering systems or other consideration related assets or (B) acreage dedications or minimum volume commitments, in an amount each case involving annual payments or having a value receipts in excess of $250,000 in the aggregate in any calendar yearand that is not cancelable without further penalty or other material payment on not more than thirty (30) days’ prior written notice; (Biii) any Contract evidencing Indebtedness of the performance by Acquired Companies or for the Business of services in an amount creating any security interest, lien or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business encumbrance (other than nondisclosure agreements); or (B) Buyer to own Permitted Encumbrances and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Sellerthe Easements) or on any asset of any Acquired Company; (Biv) any Contract that constitutes an area of mutual interest agreement or any other agreement that purports to restrict, limit or prohibit the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence ofmanner in which, or Contract forthe locations in which, Indebtedness of Seller secured by or providing Encumbrances the Acquired Companies conduct business that will be binding on the Purchased Assets, Acquired Companies after the Closing; and each Purchased Contract for borrowed money (including for future loans, credit or financing);
(xv) any Contract, the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant other Contract to which an Acquired Company is a beneficiary or obligor that can reasonably be expected to result in aggregate payments or receipts by an Acquired Company of more than $250,000 during the current or any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii)subsequent year.
(b) Except as set forth on Schedule 4.11(b) and other than with respect to the 787 Supply Agreement: (i) 5.10(b), each Material Contract set forth (or required to be set forth) on Schedule 5.10(a) is in full force and effect and (ii) each Material Contract constitutes a legal, valid, valid and binding and enforceable obligation of Seller against the applicable Acquired Company and, to the knowledge of Seller’s Knowledge, of the each other party or parties thereto and thereto, is enforceable in accordance with its termsterms against the applicable Acquired Company, and to the knowledge of Seller, each other party thereto and is in full force and effect, subject only to applicable any bankruptcy, insolvency, reorganization and moratorium Laws and reorganization, moratorium, fraudulent transfer or other Laws of general application affecting enforcement of Laws, now or hereafter in effect, relating to or limiting creditors’ rights generally.
generally and to general principles of equity (c) Except as set forth on Schedule 4.11(c) and other than with respect regardless of whether such enforceability is considered in a proceeding in equity or at Law). Neither the applicable Acquired Company nor, to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default underknowledge of Seller, any other party thereto, is in default under any Material Contract (in each caseContract, and no event, occurrence, condition or act has occurred that, with or without notice or the giving of notice, the lapse of time or both), nor is it in receipt the happening of any written Claim of such other event or condition, would become a default or breach; and (ii) event of default by such Acquired Company or, to the Knowledge knowledge of Seller, no any other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition existsparty thereto, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written would reasonably be expected to have a Material Contract (including all amendments thereto) has been made available to BuyerAdverse Effect.
Appears in 2 contracts
Sources: Membership Interest Purchase and Sale Agreement (Legacy Reserves Inc.), Membership Interest Purchase and Sale Agreement (Legacy Reserves Lp)
Contracts. (a) For purposes Section 2.13 of the Disclosure Schedule lists the following agreements (written or oral) to which the Company or any Subsidiary is a party as of the date of this Agreement, each of the following shall constitute a “Material Contract”:
(i) each Purchased Contract relating any agreement (or group of related agreements) for the lease of personal property from or to the employment (whether on third parties providing for lease payments in excess of $25,000 per annum or having a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more remaining term longer than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,00012 months;
(ii) except any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, (B) which involves more than the sum of $25,000, or (C) in which the Company or any Subsidiary has granted manufacturing rights, “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in any products or territory or has agreed to purchase a material manner minimum quantity of goods or primarily services or has agreed to the acquisition, use, transfer, development, ownership, sharing purchase goods or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)services exclusively from a certain party;
(iii) each Purchased Contract creating or relating any agreement which, to any partnershipthe knowledge of the Company, limited liability company establishes a partnership or joint venture or similar venture or arrangementventure;
(iv) each Purchased Contract with any customer agreement (or production supplier that involvesgroup of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $25,000 or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or noncompetition;
(vi) any employment or consulting agreement;
(vii) any agreement involving any officer, director or stockholder of the Company or any affiliate, as defined in Rule 12b-2 under the Securities Exchange Act of 1934 (the “Exchange Act”), thereof (an “Affiliate”);
(viii) any agreement under which the consequences of a default or termination would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of have a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii)Company Material Adverse Effect;
(ix) each noteany agreement which contains any provisions requiring the Company or any Subsidiary to indemnify any other party thereto (excluding indemnities contained in agreements for the purchase, debenture, bond, indenture, guarantee, loan, credit sale or financing agreement, instrument or other evidence of, or Contract for, Indebtedness license of Seller secured by or providing Encumbrances on products entered into in the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financingOrdinary Course of Business);; and
(x) any Contract, other agreement (or group of related agreements) either involving more than $25,000 or not entered into in the primary subject matter Ordinary Course of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii).
(b) Except The Company has delivered or made available to the Parent a complete and accurate copy of each agreement listed in Section 2.13 of the Disclosure Schedule. With respect to each agreement so listed, and except as set forth on Schedule 4.11(b) and other than with respect to in Section 2.13 of the 787 Supply AgreementDisclosure Schedule: (i) each Material Contract the agreement is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller andand in full force and effect; (ii) the agreement will continue to be legal, to Seller’s Knowledgevalid, of binding and enforceable and in full force and effect immediately following the other party or parties thereto and is enforceable Closing in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except the terms thereof as set forth on Schedule 4.11(c) and other than with respect in effect immediately prior to the 787 Supply Agreement: Closing; and (iiii) Seller has not violated neither the Company nor any Subsidiary nor, to the knowledge of the Company, any other party, is in breach or breached in any material respect violation of, or committed any material default under, any Material Contract (in each casesuch agreement, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no factis pending or, circumstance or condition existsto the knowledge of the Company, that (is threatened, which, after the giving of notice, with or without notice or lapse of time time, or both) has (i) resulted in otherwise, would constitute a material violation breach or breach default by the Company or any Subsidiary or, to the knowledge of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respectCompany, any Material Contractother party under such contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 2 contracts
Sources: Merger Agreement (Ethanex Energy, Inc.), Merger Agreement (Kreido Biofuels, Inc.)
Contracts. 3.16.1 Except (w) for this Agreement, (x) for the Contracts filed prior to the date of this Agreement as exhibits to the Company SEC Documents, (y) for the Company Plans and (z) as set forth in Schedule 3.16.1 of the Company Disclosure Letter, as of the date of this Agreement neither the Company nor any of its Subsidiaries is party to or bound by any Contract that:
(i) contains covenants that materially restrict the ability of the Company or any of its Subsidiaries to (a) For purposes of this Agreementengage in any business or compete in any business with any Person or (b) operate in any geographic area (other than franchise agreements);
(ii) is an indenture, each credit agreement, loan agreement, security agreement, guarantee, bond, mortgage or similar Contract pursuant to which any indebtedness of the following shall constitute Company or any of its Subsidiaries, in each case in excess of $2,000,000, is outstanding or secured, other than any such Contract between or among any of the Company and any of its Subsidiaries or guaranties of lease agreements;
(iii) by its terms is reasonably expected to result in future payments to or by the Company in excess of $2,000,000 per annum, except for Contracts that are terminable on less than 90 days’ notice without material penalty;
(iv) is between the Company or any of its Subsidiaries, on the one hand, and any director or officer of the Company or any Person beneficially owning five percent or more of the outstanding Company Common Stock, on the other hand, except for any employment or similar agreements, confidentiality agreements, noncompetition agreements in favor of the Company or its Subsidiaries, indemnification agreements with directors and officers of the Company, Contracts in connection with Company Plans, or any other Contracts entered into on arm’s length terms in the ordinary course of business and except for material Company Plans; or
(v) would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K of the Securities Act or disclosed by the Company on a Current Report on Form 8-K that has not been filed or incorporated by reference in the Company SEC Documents.
3.16.2 Each Contract of the type described in Section 3.16.1(i) through 3.16.1(v), and any Contract that (i) contains “most favored nation” pricing provisions in favor of the Company or any of its subsidiaries with any third party or pursuant to which the Company or any of its subsidiaries is granted exclusive rights, rights of first refusal, rights of first negotiation or offer or similar rights, (ii) has a remaining term of at least 6 months and (iii) under which the Company and its Subsidiaries are expected to make payments of at least $2,000,000 over such 6 month period, is referred to herein as a “Material Contract”:
(i) each Purchased . For the purposes of Section 3.16.1, “Contract” shall mean a Contract relating to the employment (whether on a full-time, part-time, consulting or other basis) group or series of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000;
(ii) except to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements);
(iii) each Purchased Contract creating or relating to any partnership, limited liability company or joint venture or similar venture or arrangement;
(iv) each Purchased Contract with any customer or production supplier that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing);
(x) any Contract, the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii)related Contracts.
(b) Except as set forth on Schedule 4.11(b) 3.16.3 The Company has made available to Parent a true and other than with respect to the 787 Supply Agreement: (i) complete copy of each Material Contract is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller and, to Seller’s Knowledge, of the other party or parties thereto and is enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A trueExcept as would not, correct and complete copy of individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each such written Material Contract is valid and binding on the Company and/or 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, (including ii) the Company and each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, has performed all amendments theretoobligations required to be performed by it under each Material Contract, (iii) neither the Company nor any of its Subsidiaries has received, since July 1, 2015, written notice of the existence of any breach or default on the part of the Company or any of its Subsidiaries under any Material Contract that has not since been made available cured, (iv) to Buyerthe Knowledge of the Company, there are no events or conditions which constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract that has not since been cured, (v) to the Knowledge of the Company, no other party to a Material Contract is in breach of or default under such Material Contract, and (vi) as of the date of this Agreement and since July 1, 2015, the Company has not received any written notice in writing from any Person that such Person intends to terminate, or not renew, any Material Contract, or seek negotiation of terms of any “Material Contract”.
Appears in 2 contracts
Sources: Merger Agreement (Steinhoff International Holdings N.V.), Merger Agreement (Mattress Firm Holding Corp.)
Contracts. (a) For purposes of this Agreement, each of the following shall constitute a “Material Contract”:
(i) each Purchased Contract relating to the employment (whether on a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000;
(ii) except to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements);
(iii) each Purchased Contract creating or relating to any partnership, limited liability company or joint venture or similar venture or arrangement;
(iv) each Purchased Contract with any customer or production supplier that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing);
(x) any Contract, the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii).
(b) Except as set forth on Schedule 4.11(b) and "G", neither Chem-Con nor its Subsidiaries is a party to or bound by:
4.9.1.1 any collective bargaining agreements or any agreements that contain any severance pay liabilities or obligations;
4.9.1.2 any bonus, deferred compensation, pension, profit-sharing or retirement plans, programs or other similar employee benefit arrangements;
4.9.1.3 any employment agreement, contract or commitment with an employee;
4.9.1.4 any agreement of guaranty or indemnification running from Chem-Con or its Subsidiaries to any person or entity, including, but not limited to, any Affiliate, other than guarantees or indemnifications issued in the ordinary course of Chem-Con's business relating solely to the indemnification of certain of its customers due to Chem-Con's disposal of waste generated by such customers at permitted disposal facilities not affiliated with Chem-Con;
4.9.1.5 any agreement, contract or commitment which would reasonably be expected to have a material adverse impact on the business of Chem-Con or its Subsidiaries;
4.9.1.6 any agreement, indenture or other instrument which contains restrictions with respect to payment of dividends or any other distribution in respect of Chem-Con or its Subsidiaries or any other outstanding securities of Chem-Con or its Subsidiaries;
4.9.1.7 any agreement, contract or commitment containing any covenant limiting the 787 Supply Agreement: freedom of Chem-Con or its Subsidiaries to engage in any line of business or compete with any person;
4.9.1.8 any agreement, contract or commitment relating to capital expenditures in excess of ten thousand dollars (i$10,000.00) each Material Contract and involving future payments;
4.9.1.9 any agreement, contract or commitment relating to the acquisition of assets or capital stock of any business enterprise;
4.9.1.10 any contract with the Department of Defense or any other department or agency of the United States Government, or to any subcontract under any such contract, which is subject to renegotiation under the Renegotiation Act of 1951, as amended; or
4.9.1.11 any agreement, contract or commitment not made in full force the ordinary course of business which involves Ten Thousand Dollars ($10,000) or more or has a remaining term of one (1) year or more from December 31, 1998, or is not cancelable on thirty (30) days or less notice without penalty. Neither Chem-Con nor its Subsidiaries has breached, and effect and (ii) each Material Contract constitutes a legalthere is not any claim, valid, binding and enforceable obligation of Seller andor, to Seller’s Knowledgethe best of Chem-Con's or the Sullivans or the ▇▇▇▇▇▇▇▇ Trusts' knowledge, any claim that Chem-Con or its Subsidiaries have breached any of the other party terms or parties thereto and is enforceable in accordance with its termsconditions of any agreement, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except as contract or commitment set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has not violated in this Agreement or breached in any material respect of the Schedules attached hereto or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim other agreement, contract or commitment, if any such breach or breaches in the aggregate could result in the imposition of such default damages or breach; and (ii) the loss of benefits in an amount or of a kind material to the Knowledge of Seller, no other Person has violated Chem-Con or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both)its Subsidiaries.
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Perma Fix Environmental Services Inc), Stock Purchase Agreement (Sullivan Thomas P)
Contracts. (a) For purposes SECTION 5.13 of this Agreement▇▇▇▇▇▇▇▇ and Acquisition Disclosure Schedule contains a complete and correct list as of the date hereof of all material agreements, each contracts and commitments of the following shall constitute types (and all amendments thereto), written or oral, to which ▇▇▇▇▇▇▇▇ or Acquisition are a “Material Contract”party or by which any of its properties is bound:
(i) each Purchased Contract notes, agreements, mortgages, indentures, security agreements and other instruments relating to the employment (whether on a full-timeborrowing of money or evidence of credit or the deferred purchase price of property, part-time, consulting or other basis) the direct or indirect guarantee by such entities of any Employee of the Business, and any “stay pay,” termination, change of control such indebtedness or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000deferred purchase price;
(ii) except to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a leases of real property and material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business personal property (other than nondisclosure agreementsLeases);
(iii) each Purchased Contract creating or relating to any partnership, limited liability company or joint venture or similar venture or arrangementJoint Venture agreements;
(iv) each Purchased Contract with management, employment and consulting agreements or other contracts for personal services that are not terminable by any customer or production supplier that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000such entities on not more than one month's notice without penalty;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involvingany agreements providing for liability for severance pay, collective bargaining agreements, labor contracts, or reasonably anticipated to involve, (A) the payment labor or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar yearpersonnel policies;
(vi) each Seller Contract imposing any materialmaterial surety, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own performance and operate the 787 Program as currently conductedmaintenance bonds;
(vii) each Purchased Contract under which Seller (A) leases any plan, contract or subleases any real property arrangement providing for bonuses, pensions, deferred compensation, retirement plan payments, profit sharing, incentive pay, or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from for any other Person involving lease payments or other consideration in excess of $100,000 per annumemployee benefit plan;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) brokerage or (B) any of the Persons identified on Schedule 4.11(a)(viii)finder's agreements;
(ix) each noteany agreement that (a) restricts the right of such entities to engage in any place in any line of business, debentureother than in the ordinary course of business or (b) would restrict the right of ▇▇▇▇▇▇▇▇ or any subsidiary of ▇▇▇▇▇▇▇▇ to engage in any line of business after the Closing Date, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness than in the ordinary course of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing);business; and
(x) any Contractcontract, commitment or agreement that individually or in the primary subject matter aggregate is material to ▇▇▇▇▇▇▇▇ and Acquisition, except contemplated by this Agreement or in the ordinary course of which is confidentiality, nondisclosure or similar agreement business and consistent with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii)past practice.
(b) Except as set forth on Schedule 4.11(b▇▇▇▇▇▇▇▇ and Acquisition have made available to Citadel complete and correct copies of all material written agreements, contracts and commitments, together with all amendments thereto, and accurate (in all material respects) descriptions of all material oral agreements. Such agreements, contracts and other than with respect to the 787 Supply Agreement: (i) each Material Contract is commitments are in full force and effect effect, and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation all of Seller such entities and, to Seller’s Knowledgethe best of ▇▇▇▇▇▇▇▇'▇ and Acquisition's knowledge, of the all other party or parties thereto to such agreements, contracts and is enforceable commitments have performed all obligations required to be performed by them to date thereunder in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization all material respects and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has are not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached thereunder in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Lonestar Hospitality Corp /Tx/), Merger Agreement (Lonestar Hospitality Corp /Tx/)
Contracts. (a) For purposes of this Agreement, each Section 3.14(a) of the Disclosure Schedule lists the following shall constitute agreements (other than those agreements which have been terminated with no ongoing obligations other than confidentiality or publicity) in favor of the Company (each a “Material Contract”) to which the Company or any Subsidiary is a party:
(i) each Purchased Contract relating any agreement (or group of related agreements) for the lease of personal property from or to the employment (whether on a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to third parties which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of involves more than the sum of $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000100,000;
(ii) except any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, (B) which involves more than the sum of $100,000, or (C) in which the Company or any Subsidiary has granted manufacturing rights, “most favored nation” pricing provisions or marketing or distribution rights relating to the extent included elsewhere in this Section 4.11(a)any services, each Purchased Contract relating in products or territory or has agreed to purchase a material manner minimum quantity of goods or primarily services or has agreed to the acquisition, use, transfer, development, ownership, sharing purchase goods or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)services exclusively from a certain party;
(iii) each Purchased Contract creating or relating to any partnershipagreement providing for any royalty, limited liability company or joint venture milestone or similar venture payments by the Company with respect to the development or arrangementsale of any product or use of Intellectual Property, in each case providing for payments of more than $50,000;
(iv) each Purchased Contract with any customer agreement concerning the establishment or production supplier that involvesoperation of a partnership, joint venture or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000limited liability company;
(v) each Purchased Contract not with customers any agreement (or production suppliers that group of related agreements) under which the Company or any Subsidiary has created, incurred, assumed or guaranteed (or may not be terminated create, incur, assume or guarantee) indebtedness (without penaltyincluding capitalized lease obligations) by Seller within thirty or under which it has imposed (30or may impose) days after the delivery a Security Interest on any of a termination notice by Seller and contemplating its assets, tangible or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar yearintangible;
(vi) each Seller Contract imposing any material, explicit restriction on agreement for the right disposition of any significant portion of the assets or ability business of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset Company or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business Subsidiary (other than nondisclosure agreementssales of products in the Ordinary Course of Business) or any agreement for the acquisition of the assets or business of any other Person (other than purchases of inventory or components in the Ordinary Course of Business); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under any agreement concerning confidentiality, noncompetition or non-solicitation (excluding any confidentiality agreements with consultants, service providers, suppliers or employees of the Company or any Subsidiary containing terms and conditions set forth in the Company’s or the applicable Subsidiary’s standard form of agreement, copies of which Seller (A) leases or subleases any real property or (B) leases or subleases any buildingshave previously been, structures, improvements or appurtenances, in whole or in partthe case of those Contracts indicated in Section 3.14(a)(vii) of the Disclosure Schedule, from any other Person involving lease payments will prior to the Closing Date be, delivered or other consideration in excess of $100,000 per annummade available to the Buyer);
(viii) each Purchased Contract with any employment agreement, consulting agreement, severance agreement (Aor agreement that includes provisions for the payment of severance) any Affiliate of Seller (or retention agreement, other than offer letters with employees (the form of which has been made available to the Buyer) providing for “at will” employment in the form used by the Company or any employee Subsidiary in the Ordinary Course of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii)Business;
(ix) each note, debenture, bond, indenture, guarantee, loan, credit any settlement agreement or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money settlement-related agreement (including for future loans, credit or financingany agreement in connection with which any employment-related claim is settled);
(x) any Contractagreement involving any current or former officer, director or stockholder of the primary subject matter of which is confidentialityCompany or any Affiliate thereof, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Businessother than as mentioned under (viii) above;
(xi) each Purchased Contract any agreement not otherwise listed in Section 3.14(a) of the Disclosure Schedule under which createsthe consequences of a default or termination would reasonably be expected to have a Company Material Adverse Effect;
(xii) any agency, distributor, sales representative, franchise or may createsimilar agreements to which the Company or any Subsidiary is a party or by which the Company or any Subsidiary is bound;
(xiii) any agreement which contains any provisions requiring the Company or any Subsidiary to indemnify any other party (excluding indemnities contained in agreements for the purchase, an Encumbrance on sale or license of products or services entered into in the Ordinary Course of Business);
(xiv) any Purchased Asset agreements relating to grants, funding or other forms of assistance, including loans with interest at below market rates, received by the Company or any of its Subsidiaries from any Governmental Entity;
(xv) any agreement that would reasonably be expected to have the effect of prohibiting or impairing the conduct of the business of the Company or any of the Subsidiaries or the Buyer or any of its subsidiaries as currently conducted and as currently proposed to be conducted;
(xvi) the agreements listed in an amount or with a value in excess Sections 3.13(h) and 3.13(i) of $50,000the Disclosure Schedule; and
(xiixvii) each Purchased Contract set forth on Schedule 4.11(a)(xii)any other agreement (or group of related agreements) either involving more than $100,000 or not entered into in the Ordinary Course of Business.
(b) Except The Company has made available to the Buyer a complete and accurate copy of each Contract (as set forth on Schedule 4.11(b) and other than with amended to date). With respect to the 787 Supply Agreementeach Contract: (i) each Material the Contract is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller enforceable, subject to Applicable Bankruptcy Laws, and in full force and effect against the Company or the Subsidiary that is the party thereto, as applicable, and, to Seller’s the Warrantors’ Knowledge, of the against each other party thereto; (ii) the Contract will continue to be legal, valid, binding and enforceable, subject to Applicable Bankruptcy Laws, and in full force and effect against the Company or parties the Subsidiary that is the party thereto, as applicable, and, to the Warrantors’ Knowledge, against each other party thereto and is enforceable immediately following the Closing in accordance with its termsthe terms thereof as in effect immediately prior to the Closing; and (iii) none of the Company, subject only any Subsidiary or, to applicable bankruptcythe Knowledge of the Warrantors, insolvencyany other party, reorganization is in breach or violation of, or default under, any such Contract, and moratorium Laws and no event has occurred, is pending or, to the Knowledge of the Warrantors, is threatened, which, after the giving of notice, with lapse of time, or otherwise, would constitute a breach or default by the Company, any Subsidiary or, to the Knowledge of the Warrantors, any other Laws of general application affecting enforcement of creditors’ rights generallyparty under such Contract.
(c) Except as set forth on Neither the Company nor any Subsidiary is a party to any oral contract, agreement or other arrangement which, if reduced to written form, would be required to be listed in Section 3.14(a) of the Disclosure Schedule 4.11(c) and other than with respect under the terms of Section 3.14(a). Neither the Company nor any Subsidiary is a party to the 787 Supply Agreement: any written or oral arrangement (i) Seller has not violated to perform services or breached in any material respect sell products which is expected to be performed at, or committed any material default underto result in, any Material Contract (in each casea loss, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge that is of Seller, no other Person has violated an onerous or breached in any material respectunusual nature, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person for which the unilateral right to accelerate customer has already been billed or paid that have not been fully accounted for on the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material ContractMost Recent Balance Sheet.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Medicines Co /De)
Contracts. (a) For purposes Section 2.15 of the Disclosure Schedule lists the following agreements (written or oral) to which the Seller is a party as of the date of this Agreement, each of the following shall constitute a “Material Contract”:
(i) each Purchased Contract relating any agreement (or group of related agreements) for the lease of personal property from or to the employment (whether on third parties providing for lease payments in excess of $25,000 per annum or having a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more remaining term longer than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,00012 months;
(ii) except any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, (B) which involves more than the sum of $25,000, or (C) in which the Seller has granted manufacturing rights, “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in any products or territory or has agreed to purchase a material manner minimum quantity of goods or primarily services or has agreed to the acquisition, use, transfer, development, ownership, sharing purchase goods or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)services exclusively from a certain party;
(iii) each Purchased Contract creating or relating to any partnershipagreement providing for any royalty, limited liability company or joint venture milestone or similar venture payments by the Seller with respect to the development or arrangementsale of any product;
(iv) each Purchased Contract with any customer agreement concerning the establishment or production supplier that involvesoperation of a partnership, joint venture or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000limited liability company;
(v) each Purchased Contract not with customers any agreement (or production suppliers that group of related agreements) under which the Seller has created, incurred, assumed or guaranteed (or may not create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) or under which it has imposed (or may be terminated (without penaltyrequired to impose) by Seller within thirty (30) days after the delivery a Security Interest on any of a termination notice by Seller and contemplating its assets, tangible or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar yearintangible;
(vi) each any agreement for the disposition of any significant portion of the assets or business of the Seller Contract imposing or any material, explicit restriction on agreement for the right acquisition of the assets or ability business of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business person (other than nondisclosure agreementspurchases of inventory or components in the Ordinary Course of Business); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under any agreement concerning confidentiality, noncompetition or non-solicitation (excluding any confidentiality agreements with service providers, suppliers or employees of the Seller containing terms and conditions substantially as set forth in the Seller’s standard form of agreement, copies of which Seller (A) leases have previously been delivered or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annummade available to the Buyer);
(viii) each Purchased Contract with any employment agreement, consulting agreement, severance agreement (Aor agreement that includes provisions for the payment of severance) any Affiliate of Seller (or retention agreement, other than any employee offer letters with employees (the form of Sellerwhich has been made available to the Buyer) or (B) any providing for “at will” employment in the form used by the Seller in the Ordinary Course of the Persons identified on Schedule 4.11(a)(viii)Business;
(ix) each note, debenture, bond, indenture, guarantee, loan, credit any settlement agreement or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money settlement-related agreement (including for future loans, credit or financingany agreement in connection with which any employment-related claim is settled);
(x) any Contractagreement involving any current or former officer, director or stockholder of the primary subject matter of which is confidentiality, nondisclosure Seller or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the BusinessAffiliate thereof;
(xi) each Purchased Contract any agreement not otherwise listed in Section 2.15(a) of the Disclosure Schedule under which createsthe consequences of a default or termination would reasonably be expected to have a Seller Material Adverse Effect;
(xii) any agreement which contains any provisions requiring the Seller to indemnify any other party (excluding indemnities contained in agreements for the purchase, sale or may createlicense of products or services entered into in the Ordinary Course of Business);
(xiii) any agreements relating to grants, an Encumbrance on funding or other forms of assistance, including loans with interest at below market rates, received by the Seller from any Purchased Asset in an amount Governmental Entity;
(xiv) any agreement that would reasonably be expected to have the effect of prohibiting or with a value in excess impairing the conduct of $50,000the business of the Seller or the Buyer or any of its subsidiaries as currently conducted and as currently proposed to be conducted; and
(xiixv) each Purchased Contract set forth on Schedule 4.11(a)(xii)any other agreement (or group of related agreements) either involving more than $25,000 or not entered into in the Ordinary Course of Business.
(b) Except as set forth on Schedule 4.11(b) The Seller has delivered to the Buyer a complete and other than with accurate copy of each agreement listed in Section 2.13 or Section 2.15 of the Disclosure Schedule. With respect to the 787 Supply Agreementeach agreement so listed: (i) each Material Contract the agreement is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation and in full force and effect; (ii) the agreement is assignable by the Seller to the Buyer without the consent or approval of Seller and, to Seller’s Knowledge, any party (except as set forth in Section 2.4 of the other party or parties thereto Disclosure Schedule) and is will continue to be legal, valid, binding and enforceable and in full force and effect immediately following the Closing in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except the terms thereof as set forth on Schedule 4.11(c) and other than with respect in effect immediately prior to the 787 Supply Agreement: Closing; and (iiii) neither the Seller has not violated nor, to the knowledge of the Seller, any other party, is in breach or breached in any material respect violation of, or committed any material default under, any Material Contract (in each casesuch agreement, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no factis pending or, circumstance or condition existsto the knowledge of the Seller, that (is threatened, which, after the giving of notice, with or without notice or lapse of time time, or both) has (i) resulted in otherwise, would constitute a material violation breach or breach default by the Seller or, to the knowledge of any provision of any Material Contract by the Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contractother party under such agreement.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Apellis Pharmaceuticals, Inc.), Asset Purchase Agreement (Apellis Pharmaceuticals, Inc.)
Contracts. Except for contracts, commitments, plans, agreements and licenses described in Schedule 3.7, (true and complete copies of which will have been made available to Buyer on or prior to the Delivery Date), the Company is not a party to or subject to any:
(a) For purposes investment management or investment advisory or sub-advisory contract or any other contract for the provision of this Agreement, each of the following shall constitute a “Material Contract”:
(i) each Purchased Contract relating to the employment (whether on a full-time, part-time, consulting Investment Management Services or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000Brokerage Services;
(iib) except any agreement with respect to solicitation of prospective Clients or of prospective investors for the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)Mutual Funds;
(iiic) each Purchased Contract creating plan or relating to any partnershipcontract providing for bonuses, limited liability company pensions, options, stock (or joint venture beneficial interest) purchases (or similar venture other securities or arrangementphantom equity purchases), deferred compensation, retirement payments, profit sharing, or the like;
(ivd) each Purchased Contract with employment contract, other than contracts terminable at will by the Company without liability for any customer penalty or production supplier that involves, or would reasonably be expected to involve severance payment;
(assuming delivery of eighty-four (84e) shipsets per year), contract for services involving payments by the payment or expenditure Company in excess of one hundred thousand dollars ($2,000,000;
(v100,000) each Purchased Contract per year, which is not with customers or production suppliers that may terminable by the Company without liability for any termination payment on not be terminated (without penalty) by Seller within more than thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar yearprior notice;
(vif) each Seller Contract imposing contract or agreement or series of related contracts or agreements for the purchase of any materialassets, explicit restriction on the right material or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere equipment except purchase orders in the world; ordinary course of business for less than one hundred thousand dollars (3$100,000) acquire any product per contract or other Asset agreement or any services from any other Person, sell any product series of related contracts or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(viig) each Purchased Contract under which Seller contract containing covenants limiting the freedom of the Company (Aor its Affiliates) leases to compete in any line of business or subleases with any real property person or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annumentity;
(viiih) each Purchased Contract with (A) any Affiliate agreement providing for the borrowing or lending of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assetsmoney, and each Purchased Contract for borrowed money (including for future loansthe Company has no obligations, credit or financing);
(x) any Contract, except as disclosed in the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii).
(b) Except as set forth on Schedule 4.11(b) and other than with respect to the 787 Supply AgreementBase Balance Sheet: (i) each Material Contract is in full force and effect and for borrowed money, (ii) each Material Contract constitutes a legalevidenced by bonds, validdebentures, binding and enforceable obligation notes or similar instruments, (iii) to pay the deferred purchase price of Seller andproperty or services, to Seller’s Knowledge(iv) under leases that would, of the other party or parties thereto and is enforceable in accordance with its termsGAAP, subject only to applicable bankruptcyappear on the balance sheet of the lessee as a liability, insolvency(v) secured by a Claim, reorganization and moratorium Laws and other Laws (vi) in respect of general application affecting enforcement letters of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respectcredit, or committed any material default underbankers acceptances, any Material Contract (in each casecontingent or otherwise, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (ivvii) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list respect of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.any
Appears in 2 contracts
Sources: Purchase Agreement (Affiliated Managers Group Inc), Purchase Agreement (Affiliated Managers Group Inc)
Contracts. (a) For purposes Schedule 3.15(a) sets forth a complete list of this Agreement, each of the following shall constitute contracts to which any Acquired Company is a party or by which any of them is bound as of the date of this Agreement (collectively, the “Material ContractContracts”:):
(i) each Purchased Contract relating to the employment any option, purchase and sale contract or lease (whether real or personal property) providing for annual payments of $150,000 or more or that cannot be terminated on a full-time, part-time, consulting or other basisnot more than thirty (30) days’ notice without payment by any Acquired Company of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000penalty;
(ii) except to contracts involving the extent included elsewhere annual expenditure by any Acquired Company of more than $150,000 in this Section 4.11(a)any instance for the purchase of materials, each Purchased Contract relating in a material manner goods, supplies, equipment or primarily to services, excluding any such contracts that are terminable by the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business Acquired Companies without penalty on not more than thirty (other than nondisclosure agreements)30) days’ notice;
(iii) each Purchased Contract creating or relating contracts providing for payments to any partnershipAcquired Company of more than $150,000 in any instance for the sale of natural gas, limited liability company materials, goods, supplies, equipment or joint venture or similar venture or arrangementservices, excluding any such contracts that are terminable by the Acquired Companies without penalty on not more than thirty (30) days’ notice;
(iv) each Purchased Contract with contracts involving the annual expenditure by any customer Acquired Company of more than $150,000 for the purchase, sale, transportation or production supplier that involves, or would reasonably be expected to involve (assuming delivery storage of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000coal;
(v) each Purchased Contract not with customers any agreement relating to Indebtedness for borrowed money or production suppliers that may not be terminated the deferred purchase price of property (without penalty) whether incurred, assumed, guaranteed or secured by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involvingany asset), including indentures, mortgages, loan agreements, security agreements, or reasonably anticipated to involveother agreements for the incurrence of debt, other than (A) trade accounts payable incurred in the payment Ordinary Course of Business and (B) any such agreement relating to indebtedness owed to Sellers or delivery any of their Affiliates to be repaid on or before the Closing Date or owed to any Acquired Company;
(vi) partnership, limited liability company, joint venture agreements or other agreements involving a sharing of profits or expenses by any Acquired Company;
(vii) any agreement under which (A) any Person (including any Seller) has directly or indirectly guaranteed any liabilities or obligations of any Acquired Company (other than any such guarantee by any other Acquired Company) or (B) any Acquired Company has, directly or indirectly, guaranteed any liabilities or obligations of any other Person (including any Seller but excluding any other Acquired Company);
(viii) any agreement prohibiting or limiting the ability of any Acquired Company to engage in any business activity or compete with any Person or prohibiting or limiting the ability of any Person to compete with any Acquired Company;
(ix) any agreement relating to the Business acquisition or disposition of cash any business (whether by merger, sale of stock, sale of assets or other consideration in otherwise), including any contract under which any Acquired Company will have Liabilities after the date of this Agreement relating to the acquisition or sale of any business enterprise;
(x) distributor, dealer, sales agency, marketing or similar contracts under which any Acquired Company is obligated to pay after the date of this Agreement an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in 100,000 during any calendar year;
(vixi) each Seller Contract imposing any materialother contract providing that any Acquired Company will receive future payments aggregating more than $100,000 per annum or $500,000 in the aggregate prior the expiration of such contract;
(xii) any contract with any current or former officer, explicit restriction on director or employee of any Acquired Company or any of the right Sellers involving annual consideration or ability payments in excess of $150,000, including offer letters with respect to employment scheduled to begin after the date hereof;
(xiii) any consulting or similar agreement with an independent contractor providing for (A) the Business to (1) compete with, or solicit the services or employment of, annual payments by any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration Acquired Company in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) aggregate payments by any Acquired Company of $250,000, excluding any such contracts that are terminable by the Persons identified Acquired Companies without penalty on Schedule 4.11(a)(viii)not more than thirty (30) days notice;
(ixxiv) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence any outstanding power-of, or Contract for, Indebtedness -attorney empowering any Person not a current employee of Seller secured by or providing Encumbrances any Acquired Company to act on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing)behalf of any Acquired Company;
(xxv) any Contract, the primary subject matter of which is confidentiality, nondisclosure or similar employee collective bargaining agreement with respect any labor union or employees covering former, current or future employees of any Acquired Company or work done, being done or to confidentiality arrangements executed be done in the future by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the BusinessAcquired Company;
(xixvi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000contract mining agreement; and
(xiixvii) each Purchased Contract set forth on Schedule 4.11(a)(xii)any material agreement, commitment, arrangement or plan not made in the Ordinary Course of Business.
(b) Except as set forth on Schedule 4.11(b) and other than with respect to the 787 Supply Agreement: (i) each Each Material Contract is in full force a valid and effect and (ii) binding agreement of each Material Contract constitutes Acquired Company which is a legal, valid, binding and enforceable obligation of Seller party thereto and, to Seller’s Knowledgethe Knowledge of IRP GP and Resource Partners, each of the other party parties thereto, enforceable by or against such Acquired Company and, to the Knowledge of IRP GP and Resource Partners, each of such other parties thereto and is enforceable in accordance with its terms, subject only to except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization and fraudulent conveyance, reorganization, moratorium Laws and other similar Laws of general application relating to or affecting enforcement of creditors’ rights generallygenerally and general equitable principles (whether considered in a proceeding in equity or at law). Resource Partners has heretofore delivered to Buyer true and complete copies of all such written Material Contracts. Except as set forth in Schedule 3.15(b), none of the rights of the Acquired Companies under the Material Contracts have been assigned (including by an absolute assignment of rents or contracts) or collaterally assigned, assigned for the purpose of granting security, or are affected by any security interest or similar encumbrance. Except as set forth in Schedule 3.6, none of the Material Contracts require consent to consummate the Contemplated Transactions, whether by operation of law or otherwise.
(c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: 3.15(c), (i) Seller the applicable Acquired Company is, and at all times has not violated or breached been, in any compliance in all material respect or committed any material default underrespects with all applicable terms and requirements of each Material Contract, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of SellerIRP GP and Resource Partners, no each other Person that has violated had any obligation or breached in any material respect, or committed any material default under, Liability under any Material Contract is, and at all times has been, in material compliance with all applicable terms and requirements of such Material Contract, (in each case, with or without notice or lapse iii) to the Knowledge of time or both).
(d) Other than under the 787 Supply Agreement, IRP GP and Resource Partners no event has occurred or development has occurred, and no fact, circumstance or condition exists, exists that (with or without notice or lapse of time time) may contravene, conflict with, or both) has (i) resulted result in a material violation or breach of of, or give the Acquired Companies, or any provision of any Material Contract by Seller; (ii) given any other Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right under, or to accelerate the maturity of material obligations pursuant or performance of, or to cancel, terminate, or modify, any Material Contract; or , and (iv) give no Acquired Company has been given or received from any Person at any time since January 1, 2009, any written notice or other written communication or, to the right to cancelKnowledge of IRP GP and Resource Partners, terminate oral notice or modifyother oral communication regarding any actual, in any material respectalleged, possible, or potential violation or breach of, or default under, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 2 contracts
Sources: Purchase Agreement (Tortoise Capital Resources Corp), Purchase Agreement (James River Coal CO)
Contracts. (a) For purposes of this AgreementThe Company has made available to Parent true, each complete and correct copies of the following shall constitute agreements scheduled in Section 4.7 of the Company Disclosure Schedule (the "Contracts") to which the Company or any Subsidiary is a “Material Contract”party:
(i) each Purchased Contract relating to other than sales orders entered into in the employment (whether on a full-timeordinary course, part-time, consulting or other basis) agreements with consideration in excess of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000100,000;
(ii) except to the extent included elsewhere agreements involving performance over a period of more than one year with consideration in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license excess of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)$100,000;
(iii) each Purchased Contract creating agreements containing confidentiality or relating to any partnership, limited liability company or joint venture or similar venture or arrangementnon-competition provisions;
(iv) each Purchased Contract other than purchase orders entered into in the ordinary course, any agreement concerning a partnership or joint venture or any other agree ment involving a sharing of profits, losses, costs, or liabilities by the Company or any of its Subsidiaries with any customer or production supplier that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000other Person;
(v) each Purchased Contract not with customers other than purchase orders entered into in the ordinary course, any agreement under which the Company or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery any of a termination notice by Seller and contemplating its Subsidiaries has created, incurred, assumed or involvingguaranteed any indebtedness or any capitalized lease obligation, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year50,000;
(vi) each Seller Contract imposing any materialagreement entered into during the prior three years, explicit restriction on providing for the right acquisition or ability disposition of (A) the Business to (1) compete with, a significant amount of assets or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducteda line of business;
(vii) each Purchased Contract under any agreement entered into during the prior three (3) years, providing for the purchase, redemption or issuance of Common Stock the performance of which Seller involves consideration of more than $250,000 other than redemption of Common Stock pursuant to the Company's stock repurchase plan announced in the Company's Quarterly Report for the quarter ended March 31, 2000, filed May 12, 2000, by which the Company is authorized to repurchase up to $1,000,000 of its shares (A) leases or subleases any real property or (B) leases or subleases any buildingsthrough December 31, structures2000, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess the Company had repurchased 22,300 shares of its Common Stock for $100,000 per annum;324,000); and
(viii) each Purchased Contract with (A) any Affiliate material written amendment, supplement and modification in respect of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing);
(x) any Contract, the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii)foregoing.
(b) Except as set forth on Schedule 4.11(b) and other than with respect to To the 787 Supply Agreement: Knowledge of the Company, (i) each Material Contract is all Contracts are in full force and effect and constitute valid and binding agreements of the Company or its Subsidiaries and the other parties thereto in accordance with their respective terms, and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller and, to Seller’s Knowledge, the consummation of the other party transactions contemplated hereby will not, in any material respect, violate, or parties thereto and is enforceable in accordance with its termsconstitute a breach under, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) any such Contract. Except as set forth on Schedule 4.11(cin Section 4.7(b) and other than with of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries are in default in any material respect under any of such written Contracts, have not received any written notice of such a default, and, to the 787 Supply AgreementKnowledge of the Company: (i) Seller has not violated or breached no other party to any such Contract is in default in any material respect thereunder and (ii) no event has occurred or committed any material default under, any Material Contract (in each case, condition exists that with or without notice or lapse of time or both), nor is it in receipt of any written Claim of both would constitute such a default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both)thereunder.
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 2 contracts
Sources: Merger Agreement (Richton International Corp), Merger Agreement (FRS Capital Co LLC)
Contracts. (a) For purposes Section 2.13 of the Disclosure Schedule lists the following agreements (written or oral) to which the Company is a party as of the date of this Agreement, each of the following shall constitute a “Material Contract”:
(i) each Purchased Contract relating any agreement (or group of related agreements) for the lease of personal property from or to the employment (whether on third parties providing for lease payments in excess of $50,000 per annum or having a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more remaining term longer than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,00012 months;
(ii) except any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, (B) which involves more than the sum of $50,000, or (C) in which the Company has granted manufacturing rights, “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in any products or territory or has agreed to purchase a material manner minimum quantity of goods or primarily services or has agreed to the acquisition, use, transfer, development, ownership, sharing purchase goods or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)services exclusively from a certain party;
(iii) each Purchased Contract creating or relating any agreement which, to any partnershipthe knowledge of the Company, limited liability company establishes a partnership or joint venture or similar venture or arrangementventure;
(iv) each Purchased Contract with other than the Bridge Notes and the Convertible Notes, any customer agreement (or production supplier that involvesgroup of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $50,000 or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or noncompetition;
(vi) any employment or consulting agreement;
(vii) any agreement involving any officer, director or stockholder of the Company or any affiliate, as defined in Rule 12b-2 under Exchange Act, thereof (an “Affiliate”);
(viii) any agreement under which the consequences of a default or termination would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of have a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii)Company Material Adverse Effect;
(ix) each noteany agreement which contains any provisions requiring the Company to indemnify any other party thereto (excluding indemnities contained in agreements for the purchase, debenture, bond, indenture, guarantee, loan, credit sale or financing agreement, instrument or other evidence of, or Contract for, Indebtedness license of Seller secured by or providing Encumbrances on products entered into in the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financingOrdinary Course of Business);
(x) any Contract, other agreement (or group of related agreements) either involving more than $50,000 or not entered into in the primary subject matter Ordinary Course of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;; and
(xi) each Purchased Contract any agreement, other than as contemplated by this Agreement and the Bridge Loan, relating to the sales of securities of the Company to which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with the Company is a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii)party.
(b) Except The Company has delivered or made available to the Parent a complete and accurate copy of each agreement listed in Section 2.13 of the Disclosure Schedule. With respect to each agreement so listed, and except as set forth on Schedule 4.11(b) and other than with respect to in Section 2.13 of the 787 Supply AgreementDisclosure Schedule: (i) each Material Contract the agreement is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller andand in full force and effect; (ii) the agreement will continue to be legal, to Seller’s Knowledgevalid, of binding and enforceable and in full force and effect immediately following the other party or parties thereto and is enforceable Closing in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except the terms thereof as set forth on Schedule 4.11(c) and other than with respect in effect immediately prior to the 787 Supply Agreement: Closing; and (iiii) Seller has the Company is not violated nor, to the knowledge of the Company, is any other party, in breach or breached in any material respect violation of, or committed any material default under, any Material Contract (in each casesuch agreement, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no factis pending or, circumstance or condition existsto the knowledge of the Company, that (is threatened, which, after the giving of notice, with or without notice or lapse of time time, or both) has (i) resulted in otherwise, would constitute a material violation breach or breach default by the Company or, to the knowledge of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respectCompany, any Material Contractother party under such contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 2 contracts
Sources: Merger Agreement (Invivo Therapeutics Holdings Corp.), Merger Agreement (Invivo Therapeutics Holdings Corp.)
Contracts. (a) For purposes Section 3.9(a) of this Agreement, the Seller Disclosure Letter contains a complete and accurate list of each of the following shall constitute to which AAR Manufacturing (with respect to the Business), any Acquired Company or the Satair JV is a “Material Contract”party or by which the Business Assets or the Business is bound:
(i) each Purchased Contract relating to Contracts for the employment (whether on a full-time, part-time, consulting future sale of products or other basis) services with expected payments in excess of any Employee of $5,000,000 during the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000remaining term;
(ii) Contracts for the future purchase of products or services with expected payments in excess of $1,000,000 during the remaining term except for any such Contract that may be canceled on not more than 180 days’ notice without any penalty or other liability to the extent included elsewhere Business in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license excess of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)$100,000;
(iii) each Purchased Contract creating Contracts establishing or relating to governing the management of any partnership, limited liability company or joint venture or similar venture arrangement, or acquisition or disposal of any joint ventures or similar arrangement;
(iv) each Purchased Contract Contracts that require the Business to deal exclusively with the counterparty or that limit the ability of the Business to compete in any customer product or production supplier that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000geographic market;
(v) each Purchased Contract not with customers Contracts for the lease of any personal property to or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value from any Person involving annual lease payments in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar 75,000 per year;
(vi) each Seller Contract imposing Contracts relating to the purchase of any material, explicit restriction on the right business or ability of Person (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset all or any services from substantial portion of the assets of any other business, business unit, facility or Person), sell any product whether by merger, equity or other Asset to asset purchase or perform any services for any other Personotherwise, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material entered into within three years prior to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducteddate of this Agreement for consideration in excess of $1,000,000;
(vii) each Purchased Contract under which Seller Contracts relating to the sale or disposition of any material Business Assets (A) leases other than the sale of inventory or subleases any real property obsolete or (B) leases worn-out Business Assets replaced in the ordinary course of business consistent with past practice), whether by merger, equity or subleases any buildingsasset purchase or otherwise, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other entered into within three years prior to the date of this Agreement for consideration in excess of $100,000 per annum1,000,000;
(viii) each Purchased Contract with (A) Contracts relating to any Affiliate employment, independent contractor, consulting or similar agreement requiring payment by the Business of Seller (other than base annual fees or compensation in excess of $100,000 to any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii)Person;
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing)Contracts evidencing Indebtedness;
(x) any ContractContracts providing for capital expenditures after the date of this Agreement in excess of $200,000, the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Businessindividually;
(xi) each Purchased Contract which createsContracts, other than purchase or may createsale orders or Contracts disclosed pursuant to Section 3.9(a)(i), an Encumbrance on any Purchased Asset in an amount or with a value remaining term greater than 12 months and for the future sale of products or services with expected payments during the remaining term in excess of (A) with respect to the Nordisk Business and the non-container cargo loading business of Telair International AB, $250,000 or (B) with respect to the Business, other than the Nordisk Business and the non-container cargo loading business of Telair International AB, $750,000;
(xii) Purchase or sale orders for the future sale of products or services in excess of $50,0005,000,000, other than pursuant to Contracts disclosed pursuant to Section 3.9(a)(i); and
(xiixiii) Contracts expected to result in a loss (based on the calculation of standard cost) to the Business in excess of $100,000 after the Closing. The Contracts listed (or required to be listed) in Section 3.9(a) of the Seller Disclosure Letter are referred to collectively herein as the “Significant Contracts.” Sellers have made available to Buyer a complete copy of each Purchased Contract set forth on Schedule 4.11(a)(xii)Significant Contract.
(b) Except as set forth on Schedule 4.11(b) Each Significant Contract and other than with respect to the 787 Supply Agreement: (i) each Material Additional Contract is a legally valid and binding obligation and is in full force and effect and (ii) enforceable against each Material party thereto in accordance with the terms of such Contract constitutes a legalsubject to proper authorization and execution of such Contract by the counterparties thereto and the Bankruptcy and Equity Principles. There is no material breach or default under any Significant Contract or Additional Contract, valid, binding and enforceable obligation of Seller and, to Seller’s Sellers’ Knowledge, no event has occurred that, with the passage of time or the giving of notice or both, would constitute a material breach or default by, AAR Manufacturing, any Acquired Company, the Satair JV or any other party thereto under any Significant Contract or parties thereto Additional Contract. Each Additional Contract is on arm’s length terms and is enforceable was negotiated in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generallygood faith by the Business.
(c) Except as set forth on Schedule 4.11(c) and other than with With respect to the 787 Supply Agreementeach Government Contract, to Sellers’ Knowledge, there are no pending or threatened: (i) Seller has not violated civil fraud or breached in criminal investigations by any material respect or committed any material default underGovernmental Authority, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to suspension, debarment or similar proceedings against the Knowledge of Business, any Seller, no other Person has violated Acquired Company or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material ContractSatair JV; (iii) given requests by any Person Governmental Authority for a contract price adjustment based on a claim disallowance by the unilateral right to accelerate the maturity Office of material obligations pursuant to any Material Contract; Inspector General or Defense Contract Audit Agency or similar agency, or claim of defective pricing, or (iv) give any Person disputes between the right to cancel, terminate or modify, in any material respectBusiness, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto Seller, Acquired Company or the Satair JV, on the one hand, and excluding purchase orders issued pursuant any Governmental Authority, on the other hand. With respect to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral Government Contract that expired, was terminated or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of for which final payment was made within three years prior to the date hereof, there are no requests by any Governmental Authority for a contract price adjustment based upon a claim of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyerdefective pricing.
Appears in 2 contracts
Sources: Purchase Agreement (Aar Corp), Purchase Agreement (TransDigm Group INC)
Contracts. (a) For purposes Section 2.13 of the Disclosure Schedule lists the following agreements (written or oral) to which the Company is a party as of the date of this Agreement, each of the following shall constitute a “Material Contract”:
(i) each Purchased Contract relating any agreement (or group of related agreements) for the lease of personal property from or to the employment (whether on third parties providing for lease payments in excess of $25,000 per annum or having a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more remaining term longer than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,00012 months;
(ii) except any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, (B) which involves more than the sum of $25,000, or (C) in which the Company has granted manufacturing rights, “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in any products or territory or has agreed to purchase a material manner minimum quantity of goods or primarily services or has agreed to the acquisition, use, transfer, development, ownership, sharing purchase goods or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)services exclusively from a certain party;
(iii) each Purchased Contract creating or relating any agreement which, to any partnershipthe knowledge of the Company, limited liability company establishes a partnership or joint venture or similar venture or arrangementventure;
(iv) each Purchased Contract with any customer agreement (or production supplier that involvesgroup of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $25,000 or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or noncompetition;
(vi) any employment or consulting agreement;
(vii) any agreement involving any officer, director or stockholder of the Company or any affiliate, as defined in Rule 12b-2 under Exchange Act, thereof (an “Affiliate”);
(viii) any agreement under which the consequences of a default or termination would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of have a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii)Company Material Adverse Effect;
(ix) each noteany agreement which contains any provisions requiring the Company to indemnify any other party thereto (excluding indemnities contained in agreements for the purchase, debenture, bond, indenture, guarantee, loan, credit sale or financing agreement, instrument or other evidence of, or Contract for, Indebtedness license of Seller secured by or providing Encumbrances on products entered into in the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financingOrdinary Course of Business);
(x) any Contract, other agreement (or group of related agreements) either involving more than $25,000 or not entered into in the primary subject matter Ordinary Course of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;; and
(xi) each Purchased Contract any agreement, other than as contemplated by this Agreement, relating to the sales of securities of the Company to which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with the Company is a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii)party.
(b) Except The Company has delivered or made available to the Parent a complete and accurate copy of each agreement listed in Section 2.13 of the Disclosure Schedule. With respect to each agreement so listed, and except as set forth on Schedule 4.11(b) and other than with respect to in Section 2.13 of the 787 Supply AgreementDisclosure Schedule: (i) each Material Contract the agreement is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller andand in full force and effect; (ii) the agreement will continue to be legal, to Seller’s Knowledgevalid, of binding and enforceable and in full force and effect immediately following the other party or parties thereto and is enforceable Closing in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except the terms thereof as set forth on Schedule 4.11(c) and other than with respect in effect immediately prior to the 787 Supply Agreement: Closing; and (iiii) Seller has the Company is not violated nor, to the knowledge of the Company, is any other party, in breach or breached in any material respect violation of, or committed any material default under, any Material Contract (in each casesuch agreement, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no factis pending or, circumstance or condition existsto the knowledge of the Company, that (is threatened, which, after the giving of notice, with or without notice or lapse of time time, or both) has (i) resulted in otherwise, would constitute a material violation breach or breach default by the Company or, to the knowledge of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respectCompany, any Material Contractother party under such contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 2 contracts
Sources: Merger Agreement (Cromwell Uranium Corp.), Merger Agreement (WaferGen Bio-Systems, Inc.)
Contracts. (a) For purposes Section 2.14 of the Disclosure Schedule lists the following agreements (written or oral) to which the Company is a party as of the date of this Agreement, each of the following shall constitute a “Material Contract”:
(i) each Purchased Contract relating any agreement (or group of related agreements) for the lease of personal property from or to the employment (whether on third parties providing for lease payments in excess of $10,000 per annum or having a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more remaining term longer than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,00012 months;
(ii) except any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, (B) which involves more than the sum of $10,000, or (C) in which the Company or any Subsidiary has granted manufacturing rights, "most favored nation" pricing provisions or exclusive marketing or distribution rights relating to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in any products or territory or has agreed to purchase a material manner minimum quantity of goods or primarily services or has agreed to the acquisition, use, transfer, development, ownership, sharing purchase goods or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)services exclusively from a certain party;
(iii) each Purchased Contract creating or relating to any partnership, limited liability company agreement establishing a partnership or joint venture venture, or similar venture any business arrangement for the distribution or arrangementdevelopment of products;
(iv) 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) involving more than $10,000 or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or noncompetition, excluding the Company's standard form of Nondisclosure and Noncompete Agreement entered into with each Purchased Contract employee and consultant of the Company and provided to the Buyer pursuant to Section 2.19 hereof;
(vi) any employment or consulting agreement, excluding the Company's standard form of Nondisclosure and Noncompete Agreement entered into with each employee and consultant of the Company and provided to the Buyer pursuant to Section 2.19 hereof;
(vii) any customer agreement involving any officer, director or production supplier that involvesstockholder of the Company or any affiliate (an "Affiliate"), as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), thereof;
(viii) any agreement under which the consequences of a default or termination would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of have a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii)Company Material Adverse Effect;
(ix) each noteany agreement which contains any provisions requiring the Company to indemnify any other party thereto (excluding indemnities contained in agreements for the purchase, debenture, bond, indenture, guarantee, loan, credit sale or financing agreement, instrument or other evidence of, or Contract for, Indebtedness license of Seller secured by or providing Encumbrances on products entered into in the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financingOrdinary Course of Business);; and
(x) any Contract, other agreement (or group of related agreements) either involving more than $10,000 or not entered into in the primary subject matter Ordinary Course of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii).
(b) Except as set forth on Schedule 4.11(b) The Company has delivered to the Buyer a complete and other than with accurate copy of each agreement listed in Section 2.13 or Section 2.14 of the Disclosure Schedule. With respect to the 787 Supply Agreementeach agreement so listed: (i) each Material Contract the agreement is legal, valid, binding, in full force and effect and enforceable by the Company in accordance with its terms, subject to laws of general application relating to bankruptcy, insolvency, the relief of debtors and rules of law governing injunctive relief and other equitable remedies; (ii) each Material Contract constitutes a subject to the giving of notices and receipt of consents set forth in Section 2.4 of the Disclosure Schedule, the agreement will continue to be legal, valid, binding and enforceable obligation of Seller and, to Seller’s Knowledge, of and in full force and effect immediately following the other party or parties thereto and is enforceable Closing in accordance with the terms thereof as in effect immediately prior to the Closing (unless the agreement would, by its express terms, subject only expire prior to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(cthe Closing) and other than with respect the consummation of the transactions contemplated hereby will not cause a default under or result in the acceleration of the obligations under the agreement; and (iii) the Company is not, nor, to the 787 Supply Agreement: (i) Seller has not violated knowledge of the Company, is any other party, in breach or breached in any material respect violation of, or committed any material default under, any Material Contract (in each casesuch agreement, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no factis pending or, circumstance or condition existsto the knowledge of the Company, that (is threatened, which, after the giving of notice, with or without notice or lapse of time time, or both) has (i) resulted in otherwise, would constitute a material violation breach or breach default by the Company or, to the knowledge of the Company, any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach other party under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant such contract, subject to any conflicts, breaches, violations or defaults which, individually or in the aggregate, has not had and would not be reasonably likely to have a Company Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material ContractAdverse Effect.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 2 contracts
Sources: Merger Agreement (Unisphere Networks Inc), Merger Agreement (Unisphere Networks Inc)
Contracts. (a) For purposes Except for Contracts listed on Schedules 3.9, 3.15(a) or those Contracts described in or attached to the Human Resources Agreement or those Contracts entered into after the date hereof and prior to the Closing Date in accordance with Section 5.1, neither Seller nor any of this Agreement, each of its affiliates is a party to or bound by any Contract included in the following shall constitute a “Material Contract”Acquired Assets or the Assumed Liabilities that is:
(i) each Purchased a Contract relating not terminable by the applicable Seller or its affiliates upon notice to the employment other party or parties thereto of six (whether on a full-time, part-time, consulting 6) months or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000less;
(ii) except to a Contract for the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license employment of any Intellectual Property material Person (A) with an annual base salary in excess of $200,000 or any consulting agreement with any Person involving payments by such Seller or its affiliates in excess of $200,000; (B) that contains an obligation to the conduct pay severance upon termination of employment; or (C) that contains a requirement to make any payment or provide any benefit or contractual right as a result of a sale of the Acquired Assets or the Business (other than nondisclosure agreements)or the termination of employment following a sale of the Acquired Assets or the Business;
(iii) each Purchased a collective bargaining agreement or any other material Contract creating or relating to with any partnership, limited liability company or joint venture or similar venture or arrangementlabor union;
(iv) each Purchased a Contract with any customer director, officer, subsidiary or production supplier affiliate of such Seller that involves, will not be terminated at or would reasonably be expected prior to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000Closing at no cost to Purchaser;
(v) each Purchased a letter of credit, an indenture, note, loan or credit agreement or other Contract relating to the borrowing of money by either Seller or its affiliates or the Business or to the direct or indirect guarantee or assumption by such Seller or its affiliates or the Business of the obligations of any other Person for borrowed money, including any arrangement which has the economic effect although not with customers the legal form of such a guarantee;
(vi) a covenant not to compete or production suppliers a non-solicitation, no hire, standstill or similar obligation (other than those (a) of which such Seller or any of its affiliates is the beneficiary of the covenant or (b) that may not be terminated (without penalty) by Seller within are terminable upon no more than thirty (30) days after the delivery of days’ notice (except for exclusive supply obligations which are terminable upon no more than ninety (90) days’ notice));
(vii) a termination notice by lease or similar agreement under which such Seller and contemplating or involving, or reasonably anticipated to involve, its affiliates (A) the payment is lessee of, or delivery by holds or to the Business of cash uses, any machinery, equipment, vehicle or other consideration tangible personal property owned by any third Person for an annual rent in an amount excess of $200,000 or (B) is lessor of, or makes available for use by any third Person, any tangible personal property owned (including ownership for Tax purposes) by such Seller or its affiliates having a fair market value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum200,000;
(viii) each Purchased other than the Intercompany Accounts and the Intercompany Trade Payables, a Contract with (including purchase orders) involving the obligation of such Seller relating solely to the Business to purchase or sell products or services for payment or receipt by such Seller of more than $15 million annually (unless terminable by such Seller (A) any Affiliate without payment or penalty of Seller (other not more than any employee of Seller) $250,000 or (B) any of the Persons identified on Schedule 4.11(a)(viiiupon no more than ninety (90) days’ notice);
(ix) each notea mortgage, debenturepledge, bond, indenture, guarantee, loan, credit or financing security agreement, instrument deed of trust or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money document granting a material Lien upon any Acquired Asset (including for future loansLiens upon properties acquired under conditional sales, credit capital lease or financingother title retention or security devices), other than Permitted Liens;
(x) any Contracta joint venture, partnership or other arrangement involving a sharing of profits, revenues or expenses (other than rebate programs, gain sharing plans, expense programs and similar arrangements entered into in the primary subject matter ordinary course of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf the operation of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;consistent with past practice); or
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii)Business Intellectual Property Contracts.
(b) Except as The agreements, leases, instruments and commitments set forth on Schedule 4.11(bSchedules 3.15(a) and other than 3.21 (together with respect any such agreements, leases, instruments and commitments entered into after the date hereof and prior to the 787 Supply Agreement: (i) each Material Contract is in full force and effect and (ii) each Material Contract constitutes a legalClosing Date that are, validor are required to be, binding and enforceable obligation of Seller and, to Seller’s Knowledge, of the other party or parties thereto and is enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(cany updates to Schedules 3.15(a) and other than 3.21) are collectively referred to as the “Listed Contracts”. Subject to Section 5.4, neither Seller nor its affiliates is (with respect to or without the 787 Supply Agreement: (ilapse of time or the giving of notice, or both) Seller has not violated in breach or breached default in any material respect or committed under any material default under, Listed Contract nor has any Material Contract (in each case, event occurred which with or without notice or lapse of time would constitute a breach or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach respect under any Material Listed Contract; (iii) given any Person the unilateral right . Subject to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancelSection 5.4, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement, to the Knowledge of GP, none of the other parties to any Listed Contract is (with or without the lapse of time or the giving of notice, or both) in breach or default in any material respect thereunder, nor has any event occurred that with notice or lapse of time would constitute a material breach or default or permit termination or acceleration thereof; and, as of the Closing Date, to the Knowledge of GP, none of the other parties to any Listed Contracts, or other Contracts is (with or without the lapse of time or the giving of notice, or both) in breach or default in any material respect thereunder nor has any event occurred which with notice or lapse of time would constitute a material breach or default or permit termination or acceleration through which, individually or in the aggregate, would have a Material Adverse Effect. A trueAs of the date of this Agreement, correct and complete copy neither Seller has received any written notice of each such written Material Contract (including all amendments thereto) has been the intention of any party to terminate any Listed Contract, whether as a termination for convenience or for default of a Seller thereunder. Sellers have made available to BuyerPurchaser true, complete and correct copies of each of the Listed Contracts (to the extent such Listed Contract is in writing), including any amendments thereto, as of the date of this Agreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Georgia Pacific Corp), Asset Purchase Agreement (BlueLinx Holdings Inc.)
Contracts. (a) For purposes Section 2.14 of the Company Disclosure Schedule lists the following agreements (written or oral) to which the Company is a party as of the date of this Agreement, each of Agreement (other than the following shall constitute a “Material Contract”:Transaction Documentation (as hereinafter defined)):
(i) each Purchased Contract relating any agreement (or group of related agreements) for the lease of personal property from or to third parties (A) which provides for lease payments in excess of $75,000 per annum or (B) which has a remaining term longer than 12 months and is not cancellable without penalty by the employment Company on sixty (whether on a full-time, part-time, consulting 60) days or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000less prior written notice;
(ii) except any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, is not cancellable without penalty by the Company on sixty (60) days or less prior written notice and involves more than the sum of $75,000, or (B) in which the Company has granted manufacturing rights, “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in any products or territory or has agreed to purchase a material manner minimum quantity of goods or primarily services or has agreed to the acquisition, use, transfer, development, ownership, sharing purchase goods or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)services exclusively from a certain party;
(iii) each Purchased Contract creating or relating any agreement which, to any partnershipthe knowledge of the Company, limited liability company or is a material joint venture or similar venture or arrangementlegal partnership;
(iv) each Purchased Contract with any customer agreement (or production supplier that involvesgroup of related agreements) under which it has created, incurred, assumed or would reasonably be expected to involve guaranteed (assuming delivery or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $75,000 or under which it has imposed (or may impose) a Security Interest on any of eighty-four (84) shipsets per year)its assets, the payment tangible or expenditure in excess of $2,000,000intangible;
(v) each Purchased Contract not with customers or production suppliers any agreement that may not be terminated (without penalty) by Seller within thirty (30) days after purports to limit in any material respect the delivery right of a termination notice by Seller and contemplating or involvingthe Company to engage in any line of business, or reasonably anticipated to involve, (A) the payment compete with any person or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate operate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar yeargeographical location;
(vi) each Seller Contract imposing any material, explicit restriction on the right employment agreement or ability consulting agreement which provides for payments in excess of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business $50,000 per annum (other than nondisclosure agreementsemployment or consulting agreements terminable on less than thirty (30) days’ notice); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract any agreement involving any officer, director or stockholder of the Company or any affiliate (as defined in Rule 12b-2 under the Exchange Act) thereof (an “Affiliate”) (other than stock subscription, stock option, restricted stock, warrant or stock purchase agreements the forms of which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annumhave been made available to Parent);
(viii) each Purchased Contract with any agreement or commitment for capital expenditures in excess of $25,000, for a single project (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of it being represented and warranted that the Persons identified on Schedule 4.11(a)(viiiliability under all undisclosed agreements and commitments for capital expenditures does not exceed $100,000 in the aggregate for all projects);
(ix) each noteany agreement which contains any provisions requiring the Company to indemnify any other party thereto (excluding indemnities contained in agreements for the purchase, debenture, bond, indenture, guarantee, loan, credit sale or financing agreement, instrument or other evidence of, or Contract for, Indebtedness license of Seller secured by or providing Encumbrances on products entered into in the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financingOrdinary Course of Business);
(x) any Contractagreement, other than as contemplated by this Agreement, relating to the primary subject matter future sales of securities of the Company other than outstanding stock option, restricted stock, warrant or stock purchase agreements the forms of which is confidentiality, nondisclosure or similar agreement with respect have been made available to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;Parent ; and
(xi) each Purchased Contract any other agreement (or group of related agreements) (A) under which creates, the Company is obligated to make payments or may create, an Encumbrance on any Purchased Asset in an amount or with a value incur costs in excess of $50,000; and
75,000 in any year or (xiiB) not entered into in the Ordinary Course of Business, in each Purchased Contract set forth on Schedule 4.11(a)(xiicase which is not otherwise described in clauses (i) through (xi).
(b) Except The Company has delivered or made available to the Parent a complete and accurate copy of each agreement listed in Section 2.14 of the Company Disclosure Schedule. With respect to each agreement so listed, and except as set forth on Schedule 4.11(b) and other than with respect to in Section 2.14 of the 787 Supply AgreementCompany Disclosure Schedule: (i) each Material Contract the agreement is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller andthe Company and in full force and effect, except as such enforceability may be limited under applicable bankruptcy, insolvency and similar laws, rules or regulations affecting creditors’ rights and remedies generally and to Seller’s Knowledgegeneral principles of equity, whether applied in a court of law or a court of equity; (ii) the agreement will continue to be legal, valid, binding and enforceable obligation of the other party Company, except as such enforceability may be limited under applicable bankruptcy, insolvency and similar laws, rules or parties thereto regulations affecting creditors’ rights and is enforceable remedies generally and to general principles of equity, whether applied in a court of law or a court of equity and will be in full force and effect immediately following the Effective Time in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except the terms thereof as set forth on Schedule 4.11(c) and other than with respect in effect immediately prior to the 787 Supply Agreement: Effective Time; and (iiii) Seller has not violated neither the Company nor, to the knowledge of the Company, any other party, is in breach or breached in any material respect violation of, or committed any material default under, any Material Contract (in each casesuch agreement, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no factis pending or, circumstance or condition existsto the knowledge of the Company, that (is threatened, which, after the giving of notice, with or without notice or lapse of time time, or both) has (i) resulted in otherwise, would constitute a material breach or default by the Company or, to the knowledge of the Company, any other party under such contract, except for any breach, violation or breach of any provision of any default that has not had a Company Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material ContractAdverse Effect.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 2 contracts
Sources: Merger Agreement (Enumeral Biomedical Holdings, Inc.), Merger Agreement (Enumeral Biomedical Holdings, Inc.)
Contracts. (aSection 4(m) For purposes of this Agreement, each of the Disclosure Schedule lists, whether written or oral, together with all amendments and modifications thereto, the following shall constitute a “Material Contract”agreements and contracts of MEI:
(i) each Purchased Contract relating to the employment (all contracts and agreements, whether on a full-timeor not fully performed, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is MEI has since January 1, 1997 acquired or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary disposed of more than $60,000 500,000 worth of its business or for which the cost of such severance, termination or relocation payment would exceed $30,000assets;
(ii) except all agreements containing (A) covenants not to compete on the extent included elsewhere part of MEI or other similar restrictions on the ability of MEI to engage in this Section 4.11(a)its business, each Purchased Contract relating in a material manner (B) rights of first refusal, (C) exclusive dealing or primarily to the acquisition, use, transfer, development, ownership, sharing minimum purchase provisions or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)D) prepayment or termination penalties;
(iii) each Purchased Contract creating all notes, mortgages, indentures, letters of credit, guarantees, performance bonds, security agreements and other agreements and instruments for lending or relating borrowing (including assumed debt) entered into by MEI or pursuant to which any partnership, limited liability company properties or joint venture assets of MEI are pledged or similar venture or arrangementmortgaged as collateral;
(iv) each Purchased Contract any employment or consulting agreement with any customer present or production supplier that involvesformer director, officer or would reasonably be expected to involve (assuming delivery employee of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000MEI;
(v) each Purchased Contract not with customers all joint venture or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of partnership agreements to which MEI is a termination notice by Seller and contemplating party or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar yearbound;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability all agreements pursuant to which MEI pays royalties in excess of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted$25,000 per year;
(vii) each Purchased Contract under all area development agreements, construction agreements and franchise agreements to which Seller MEI is a party or bound;
(Aviii) leases all product or subleases any real property service purchasing and supplier agreements to which MEI is a party or bound, pursuant to which MEI has purchased or committed to purchase more than $250,000 of products, services or supplies during the last year or during the next twelve (B12) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from months; and
(ix) any other Person involving lease payments or other contracts and agreements of MEI, the performance of which will involve consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other and are not terminable by MEI without penalty upon not more than any employee of Seller) or (B) any of 60 days notice. The foregoing are hereinafter referred to as the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing);
(x) any Contract, the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with "MEI Contracts." Buyer has been delivered a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii).
(b) Except as set forth on Schedule 4.11(b) and other than with respect to the 787 Supply Agreement: (i) each Material Contract is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller and, to Seller’s Knowledge, of the other party or parties thereto and is enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such MEI Contract or other agreement listed in Section 4(m) of the Disclosure Schedule (as amended to date). No Seller knows of any material defense to the validity or enforceability of any MEI Contract. Neither MEI nor any Seller has received written Material Contract (including all amendments thereto) notice that MEI is in material default and MEI has been made available to Buyernot materially defaulted under any MEI Contract. MEI has not waived any material rights under any MEI Contract. MEI has not received or given notice of any breach or default in connection with any MEI Contract.
Appears in 2 contracts
Sources: Purchase Agreement (Pantry Inc), Purchase Agreement (Pantry Inc)
Contracts. (a) For purposes of this Agreement, each Section 3.11 (a) of the following shall constitute a “Material Contract”:
(i) Company Disclosure Schedule identifies each Purchased Contract relating to the employment (whether on a full-timematerial license agreement, part-timedevelopment agreement, consulting manufacturing agreement, distribution agreement, OEM agreement or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant agreement to which Seller the Company is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000;
(ii) except to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements);
(iii) each Purchased Contract creating or relating to any partnership, limited liability company or joint venture or similar venture or arrangement;
(iv) each Purchased Contract with any customer or production supplier that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing);
(x) any Contract, the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii)party.
(b) Except as set forth on Schedule 4.11(bSection 3.11(b) and other than with respect to of the 787 Supply Agreement: Company Disclosure Schedule:
(i) each The Company has no agreements, contracts or commitments that call for prospective fixed and/or contingent payments or expenditures by or to the Company of more than $50,000 other than those entered into in the ordinary course of its business concerning the sale of Company Products;
(ii) The Company has no purchase agreement, contract or commitment that calls for fixed and/or contingent payments by the Company that are in excess of the normal, ordinary and usual requirements of the Company's business;
(iii) There is no outstanding sales contract, commitment or proposal (including, without limitation, development projects) of the Company that is reasonably likely to result, either individually or in the aggregate, in any Material Contract Adverse Change to the Company upon completion or performance thereof;
(iv) The Company has no outstanding agreements, contracts or commitments with officers, employees, agents, consultants, advisors, salesmen, sales representatives, distributors or dealers that are not cancelable by it on notice of not longer than thirty days and without liability, penalty or premium exceeding $50,000 in any single instance or $75,000 in the aggregate;
(v) The Company has not entered into any employment, independent contractor or similar agreement, contract or commitment that is not terminable on not more than thirty days' notice without penalty or liability of any type, including without limitation severance or termination pay;
(vi) The Company has no collective bargaining or union agreements, contracts or commitments;
(vii) The Company is not restricted by agreement from competing with any person, from carrying on its business anywhere in the world or otherwise operating its business in any manner it deems appropriate;
(viii) The Company has not guaranteed any obligations of other Persons or made any agreements to acquire or guarantee any obligations of other Persons; and
(ix) The Company has no outstanding loan or advance to any Person; nor is it party to any line of credit, standby financing, revolving credit or other similar financing arrangement of any sort that would permit the borrowing by the Company of any sum not reflected in the Company Financial Statements.
(c) The Company has delivered to the Purchasers or their legal counsel accurate and complete copies of all written contracts identified in Section 3.11 (a) and (b) of the Company Disclosure Schedule, including all amendments thereto. Sections 3.1l (a) and (b) of the Company Disclosure Schedule contain a complete list of all the material contracts to which the Company is a party. The Company has not entered into any material oral contracts. Each contract identified in Sections 3.11 (a) and (b) of the Company Disclosure Schedule (a "COMPANY MATERIAL CONTRACT") is valid and in full force and effect and (ii) each Material Contract constitutes a legaleffect, valid, binding and enforceable obligation of Seller and, to Seller’s Knowledge, of the other party or parties thereto and is enforceable by the Company in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws (i) laws of general application affecting enforcement relating to insolvency and the relief of creditors’ rights generallydebtors and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies, and will continue to be so immediately following the Closing Date. No such contract, agreement or instrument contains any liquidated damages, penalty or similar provision. To the Company's knowledge, no party to any such contract, agreement or instrument intends to cancel, withdraw, modify or amend such contract, agreement or instrument.
(c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller The Company has not violated or breached in any material respect breached, or committed any material default under, any Company Material Contract (in each caseany material respect, with or without notice or lapse of time or both)and, nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of SellerCompany's knowledge, no other Person has violated or breached breached, or committed any default under, any Company Material Contract in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).; and
(dii) Other than under to the 787 Supply AgreementCompany's knowledge, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time time) will, or bothcould reasonably be expected to, (A) has (i) resulted result in a material violation or breach of any provision of the provisions of any Company Material Contract by Seller; Contract, (iiB) given give any Person the right to declare a material default or exercise any remedy for breach under any Company Material Contract; , (iiiC) given give any Person the unilateral right to accelerate the maturity or performance of material obligations pursuant to any Company Material Contract; Contract or (ivD) give any Person the right to cancel, terminate or modify, in modify any material respect, any Company Material Contract.
(e) Schedule 4.11(e) provides a list None of all written the Company's Material Contracts (including all amendments thereto contains any provision which would require the consent of third parties to the sale and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description issuance of all material terms the Purchased Securities or the subsequent sale of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date Preferred Shares, Conversion Shares and Warrant Shares, above, or any of this Agreement. A true, correct and complete copy the other transactions as contemplated hereunder or under any of each the Related Agreements or which would be altered as a result of such written Material Contract (including all amendments thereto) has been made available to Buyertransaction.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Beacon Power Corp), Securities Purchase Agreement (Satcon Technology Corp)
Contracts. (a) For purposes Section 2.15 of the Company Disclosure Schedule lists the following agreements (written or oral) to which the Company or any Company Subsidiary is a party as of the date of this Agreement, each of Agreement (other than the following shall constitute a “Material Contract”:Transaction Documentation (as hereinafter defined)):
(i) each Purchased Contract relating any agreement (or group of related agreements) for the lease of personal property from or to the employment (whether on a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000;
(ii) except to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements);
(iii) each Purchased Contract creating or relating to any partnership, limited liability company or joint venture or similar venture or arrangement;
(iv) each Purchased Contract with any customer or production supplier that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, third parties (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or which provides for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum and (B) which has a remaining term longer than 12 months and is not cancellable without penalty by the Company on sixty (60) days or less prior written notice;
(ii) any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, is not cancellable without penalty by the Company on sixty (60) days or less prior written notice and involves more than the sum of $100,000 per annum, or (B) in which the Company or any Company Subsidiary has granted manufacturing rights, “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any products or territory or has agreed to purchase goods or services exclusively from a certain party;
(iii) any agreement which, to the knowledge of the Company, establishes a material joint venture or legal partnership;
(iv) 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) involving more than $100,000 or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement that purports to limit in any material respect the right of the Company to engage in any line of business, or to compete with any person or operate in any geographical location;
(vi) any employment agreement or consulting agreement which provides for payments in excess of $250,000 per annum (other than employment or consulting agreements terminable on less than thirty (30) days’ notice);
(vii) any agreement involving any officer, director or stockholder of the Company or any affiliate (as defined in Rule 12b-2 under the Exchange Act) thereof (an “Affiliate”) (other than stock subscription, stock option, restricted stock, warrant or stock purchase agreements the forms of which have been made available to Parent);
(viii) each Purchased Contract with any agreement or commitment for capital expenditures in excess of $100,000, for a single project (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of it being represented and warranted that the Persons identified on Schedule 4.11(a)(viiiliability under all undisclosed agreements and commitments for capital expenditures does not exceed $500,000 in the aggregate for all projects);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or any other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on agreement required to be filed as an exhibit to the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing)Super 8-K;
(x) any Contractagreement, the primary subject matter of which is confidentialityother than as contemplated by this Agreement, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect relating to the Business pursuant to which future sales of securities of the Company or any third party owes an obligation of confidentiality to Seller in relation to the Business;Company Subsidiary; and
(xi) each Purchased Contract any other agreement (or group of related agreements) (A) under which creates, the Company is obligated to make payments or may create, an Encumbrance on any Purchased Asset in an amount or with a value incur costs in excess of $50,000; and
100,000 in any year or (xiiB) not entered into in the Ordinary Course of Business, in each Purchased Contract set forth on Schedule 4.11(a)(xiicase which is not otherwise described in clauses (i) through (xi).
(b) Except The Company has delivered or made available to the Parent a complete and accurate copy of each agreement listed in Section 2.15 of the Company Disclosure Schedule. With respect to each agreement so listed, and except as set forth on Schedule 4.11(b) and other than with respect to in Section 2.15 of the 787 Supply AgreementCompany Disclosure Schedule: (i) each Material Contract the agreement is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller andthe Company and in full force and effect, except as such enforceability may be limited under applicable bankruptcy, insolvency and similar laws, rules or regulations affecting creditors’ rights and remedies generally and to Seller’s Knowledgegeneral principles of equity whether applied in a court of law or a court of equity; (ii) the agreement will not, as a result of the other party execution and delivery by the Company of this Agreement or parties thereto the Transaction Documentation, or the consummation by the Company of the transactions contemplated hereby or thereby, cease to be a legal, valid, binding and is enforceable obligation of the Company, except as such enforceability may be limited under applicable bankruptcy, insolvency and similar laws, rules or regulations affecting creditors’ rights and remedies generally and to general principles of equity, whether applied in a court of law or a court of equity, or to be in full force and effect in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except the terms thereof as set forth on Schedule 4.11(c) and other than with respect in effect immediately prior to the 787 Supply Agreement: Closing; and (iiii) Seller has not violated neither the Company nor any Company Subsidiary nor, to the knowledge of the Company, any other party, is in breach or breached in any material respect violation of, or committed any material default under, any Material Contract (in each casesuch agreement, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no factis pending or, circumstance or condition existsto the knowledge of the Company, that (is threatened, which, after the giving of notice, with or without notice or lapse of time time, or both) has (i) resulted in otherwise, would constitute a material breach or default by the Company or any Company Subsidiary or, to the knowledge of the Company, any other party under such contract, except for any breach, violation or breach of any provision of any default that has not had and would not reasonably be anticipated to have a Company Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material ContractAdverse Effect.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 2 contracts
Sources: Merger Agreement (Miramar Labs, Inc.), Merger Agreement (Miramar Labs, Inc.)
Contracts. (a) For purposes Section 3.13 of the Disclosure Schedule lists the following agreements (written or oral) to which the Company or any Subsidiary is a party as of the date of this Agreement, each of the following shall constitute a “Material Contract”:
(i) each Purchased Contract relating any agreement (or group of related agreements) for the lease of personal property from or to the employment third parties providing for lease payments in excess of €10,000 per annum or having a remaining term longer than twelve (whether on a full-time, part-time, consulting or other basis12) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000months;
(ii) except any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, (B) which involves more than the sum of €50,000, or (C) in which the Company or any Subsidiary has granted manufacturing rights, “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in any products or territory or has agreed to purchase a material manner minimum quantity of goods or primarily services or has agreed to the acquisition, use, transfer, development, ownership, sharing purchase goods or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)services exclusively from a certain party;
(iii) each Purchased Contract creating any agreement concerning the establishment or relating to any operation of a partnership, limited liability company or joint venture or similar venture or arrangementlimited liability company;
(iv) each Purchased Contract with any customer agreement (or production supplier that involvesgroup of related agreements) under which the Company or any Subsidiary has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than €50,000 or under which the Company or any Subsidiary has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement for the disposition of any significant portion of the assets or business of the Company or any Subsidiary (other than sales of products in the Ordinary Course of Business) or any agreement for the acquisition of the assets or business of any other entity (other than purchases of inventory or components in the Ordinary Course of Business);
(vi) any agreement concerning confidentiality or noncompetition;
(vii) any employment or consulting agreement;
(viii) any agreement involving any current or former officer, director or stockholder of the Company or an Affiliate thereof;
(ix) any agreement not already listed in Section 3.12 of the Disclosure Schedule under which the consequences of a default or termination would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of have a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing)Company Material Adverse Effect;
(x) any Contractagreement not already listed in Section 3.12 of the Disclosure Schedule which contains any provisions requiring the Company or any Subsidiary to indemnify any other party (excluding indemnities contained in agreements for the purchase, sale or license of products entered into in the primary subject matter Ordinary Course of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;); and
(xi) each Purchased Contract which creates, any other agreement (or may create, an Encumbrance on any Purchased Asset group of related agreements) either involving more than €10,000 or not entered into in an amount or with a value in excess the Ordinary Course of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii)Business.
(b) Except as set forth on Schedule 4.11(b) The Trust has delivered to the Buyer a complete and other than with accurate copy of each agreement listed in Section 3.11 or Section 3.13 of the Disclosure Schedule. With respect to the 787 Supply Agreementeach agreement so listed: (i) each Material Contract the agreement is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller and, to Seller’s Knowledge, of the other party or parties thereto and is enforceable in full force and effect in accordance with its termsthe terms thereof; (ii) the agreement will continue to be legal, subject only to applicable bankruptcyvalid, insolvency, reorganization binding and moratorium Laws enforceable and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except in full force and effect immediately following the Closing in accordance with the terms thereof as set forth on Schedule 4.11(c) and other than with respect in effect immediately prior to the 787 Supply Agreement: Closing; and (iiii) Seller has not violated neither the Company nor any Subsidiary nor, to the knowledge of the Trust, any other party, is in breach or breached in any material respect violation of, or committed any material default under, any Material Contract (in each casesuch agreement, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no factis pending or, circumstance or condition existsto the knowledge of the Trust, that (is threatened, which, after the giving of notice, with or without notice or lapse of time time, or both) has (i) resulted in otherwise, would constitute a material violation breach or breach default by the Company or any Subsidiary or, to the knowledge of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respectTrust, any Material Contractother party under such agreement.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 1 contract
Sources: Stock Purchase Agreement (American Superconductor Corp /De/)
Contracts. (a) For purposes Section 2.15 of the Company Disclosure Schedule lists the following agreements (written or oral) to which the Company is a party as of the date of this Agreement, each of the following shall constitute a “Material Contract”:
(i) each Purchased Contract relating any agreement (or group of related agreements) for the lease of personal property from or to the employment (whether on third parties providing for lease payments in excess of $25,000 per annum or having a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more remaining term longer than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,00012 months;
(ii) except any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, (B) which involves more than the sum of $25,000 (excluding agreements for the sale of goods in the Ordinary Course of Business that contain any Company Obligations (as defined below) no less favorable to the extent included elsewhere in this Section 4.11(aCompany than the Standard Terms (as defined below)), each Purchased Contract or (C) in which the Company has granted manufacturing rights, "most favored nation" pricing provisions or marketing or distribution rights relating in to any products or territory or has agreed to purchase a material manner minimum quantity of goods or primarily services or has agreed to the acquisition, use, transfer, development, ownership, sharing purchase goods or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)services exclusively from a certain party;
(iii) each Purchased Contract creating or relating to any partnership, limited liability company agreement establishing a partnership or joint venture or similar venture or arrangementventure;
(iv) each Purchased Contract 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) involving more than $25,000 or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or noncompetition;
(vi) any agreement for personal services or employment with any customer of the Company's employees not terminable by the Company before or production supplier that involvesafter the Merger upon not more than 10 days' notice without penalty or any other liability;
(vii) any bonus, deferred compensation, pension, severance, profit-sharing, stock option, employee stock purchase or retirement plan, contract or arrangement or other employee benefit plan or other arrangement covering the Company's employees not terminable by the Company before or after the Merger upon not more than 10 days' notice without penalty or any other liability;
(viii) any agreement involving any current or former officer, director or stockholder of the Company or any affiliate (an "Affiliate"), as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended, thereof;
(ix) any agreement under which the consequences of a default or termination would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of have a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing)Company Material Adverse Effect;
(x) any Contractagreement (A) which contains any provisions requiring the Company to indemnify any other party thereto (excluding indemnities contained in agreements for the purchase, sale or license of products entered into in the primary subject matter Ordinary Course of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or Business on behalf of Seller with respect terms no less favorable to the Business pursuant Company than the Standard Terms (as defined below)) or (B) relating to which the extension of credit by the Company or guaranteeing by the Company of any obligation of any third party owes an obligation of confidentiality to Seller in relation to the Businessparty;
(xi) each Purchased Contract which createsany contract or agreement that provides any discount other than pursuant to the Company's standard discount terms;
(xii) any contract providing for the payment of a commission or other fee calculated as or by reference to the volume of web traffic or a percentage of the profits or revenues of the Company or of any business segment of the Company;
(xiii) any contract or agreement not described above that is material to the business, operations, assets, financial condition, results of operations, properties or may createprospects of the Company, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000including without limitation, agreements relating to web site development and operations; marketing, promotion, affiliate and advertising, including search engine referrals and Internet private labeling; fulfillment operations; and telephone, credit card and freight carrier services; and
(xiixiv) each Purchased Contract set forth on Schedule 4.11(a)(xii)any other agreement (or group of related agreements) either involving more than $25,000 or not entered into in the Ordinary Course of Business.
(b) Except as set forth on The Company has delivered to the Buyer a complete and accurate copy of each written agreement listed in Section 2.12 or Section 2.15 of the Company Disclosure Schedule 4.11(b) and other than with such Sections of the Company Disclosure Schedule contains an accurate summary of each oral agreement so listed. With respect to the 787 Supply Agreementeach agreement so listed: (i) each Material Contract the agreement is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller andand in full force and effect; (ii) the agreement will continue to be legal, to Seller’s Knowledgevalid, of binding and enforceable and in full force and effect immediately following the other party or parties thereto and is enforceable Closing in accordance with its termsthe terms thereof as in effect immediately prior to the Closing; and (iii) neither the Company nor, subject only to applicable bankruptcythe knowledge of the Company, insolvencyany other party, reorganization is in breach or violation of, or default under, any such agreement, and moratorium Laws and no event has occurred, is pending or, to the knowledge of the 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 Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(c) and other than party under such agreement. No notice has been received by the Company with respect to the 787 Supply Agreement: (i) Seller has not violated possible termination or breached in modification of any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurredcontract, and the Company has no fact, circumstance reason to believe that any business or condition exists, that (financial relationship with or without notice or lapse of time or both) has (i) resulted in any party to a material violation or breach of any provision of any Material Contract contract is likely to be adversely affected by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as consummation of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to BuyerMerger.
Appears in 1 contract
Contracts. (a) For purposes of this AgreementSchedule 2.13(a) lists all Contracts and Agreements, each whether written or oral, including amendments thereto, that fall into one or more of the following shall constitute categories (each a “"Material Contract”:" and, collectively, the "Material Contracts"):
(i) each Purchased Contract relating to Any agreement involving the employment (whether on a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of expenditure by the Business who earns or earned an annual base salary of more than $60,000 50,000 and not cancelable upon notice by Sellers without penalty or for which the cost of such severance, termination or relocation payment would exceed $30,000consent within ninety (90) days;
(ii) except Any agreement relating to capital expenditures, providing for the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner payment of an aggregate amount of more than $50,000 and not cancelable upon notice by Sellers without penalty or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business consent within ninety (other than nondisclosure agreements)90) days;
(iii) each Purchased Contract creating or Any agreement, contract, lease, plan, arrangement and/or commitment relating to the grant or receipt by Sellers of any partnership, limited liability company license or joint venture royalty fees or similar venture other payment obligations to or arrangementfrom any Person;
(iv) each Purchased Contract Except for those employment agreements that are not assumed pursuant to this Agreement, any employment agreement, contract, policy, confidentiality or proprietary rights agreement, and/or commitment with or between Sellers and any customer of their respective employees, directors or production supplier that involvesofficers, or would reasonably be expected including without limitation those relating to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000severance;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involvingPartnership, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash joint venture or other consideration in an amount cooperative arrangements or having agreements involving a value in excess sharing of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar yearprofits and expenses;
(vi) each Seller Contract imposing any materialAny contract, explicit restriction on agreement or arrangement containing covenants limiting the right or ability freedom of (A) the Business to (1) compete with, or solicit the services or employment of, in any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact line of business with any other Person; person, group association or (4) develop, use, sell, enforce business entity or license in any Intellectual Property material to the Business (other than nondisclosure agreements); area or (B) Buyer to own and operate the 787 Program as currently conductedterritory;
(vii) each Purchased Contract under Any other agreement, contract and commitment the assignment of which Seller (A) leases either requires consent by a third party in connection with the consummation of the Transaction or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess that is entered into by Sellers that is outside of $100,000 per annum;the ordinary course of the Business; and
(viii) each Purchased Contract with (A) Any lease pertaining to the use of any Affiliate of Seller (other than any employee of Seller) or (B) any portion of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured Real Property by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing);
(x) any Contract, the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii)parties.
(b) Except as set forth on Schedule 4.11(b) Sellers have delivered to Buyer complete and other than correct copies of all Material Contracts together with respect all amendments thereto. All of the Material Contracts are the valid and binding obligations of the Sellers and, to the 787 Supply Agreement: (i) each Material Contract is Knowledge of Sellers, the other respective parties thereto, are in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller and, as to Seller’s Knowledge, of the other party or parties thereto and is Sellers are enforceable in accordance with its their respective terms, subject only to applicable except as the enforcement may be affected by bankruptcy, insolvency, reorganization and moratorium Laws and reorganization, moratorium, fraudulent transfer or other Laws laws relating to or limiting creditors' rights generally or by general principles of general application affecting enforcement equity, regardless of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor whether such enforceability is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted considered in a material violation proceeding at law or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contractequity.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 1 contract
Contracts. (a) For purposes Section 4.11(a) of this Agreement, the Company Disclosure Schedule lists for each category below each of the following shall constitute Contracts to which the Company is a party or by which the Company or any of its assets or properties is bound as of the date hereof (the Contracts disclosed or required to be disclosed on Section 4.11(a) of the Disclosure Schedule, collectively, the “Material ContractContracts”:):
(i) each Purchased any Contract relating to (or group of related Contracts) that involved payments by the employment (whether on a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary Company of more than $60,000 100,000 in calendar year 2023 or for which that is reasonably expected to require payments by the cost Company of such severance, termination or relocation payment would exceed more than $30,000100,000 in calendar year 2024;
(ii) except any Contract that involved payments to the extent included elsewhere Company of more than $50,000 in this Section 4.11(a), each Purchased Contract relating in a material manner calendar year 2023 or primarily that is reasonably expected to involve payments to the acquisition, use, transfer, development, ownership, sharing or license Company of any Intellectual Property material to the conduct of the Business (other more than nondisclosure agreements)$50,000 in calendar year 2024;
(iii) each Purchased any collective bargaining agreement or other Contract creating with any labor union, works council or relating to any partnership, limited liability company or joint venture or similar venture or arrangementother labor organization;
(iv) each Purchased any settlement, conciliation or similar Contract (A) with any customer Governmental Entity or production supplier that involves, or would reasonably be expected (B) pursuant to involve (assuming delivery of eighty-four (84) shipsets per year), which the payment or expenditure in excess of $2,000,000Company will have any material outstanding obligation after the Closing Date;
(v) each Purchased any employment or consulting Contract not with customers any Company Employee or production suppliers other Person on a full-time or part-time basis that may cannot be terminated (by the Company without penalty) by Seller within penalty on less than thirty (30) days after days’ notice;
(vi) any Contract which includes a change-of-control, sale or retention bonus or similar payment, commitment or arrangement implicated by or payable upon the delivery consummation of the transactions contemplated by the Transaction Agreements;
(vii) any partnership, joint venture, limited liability company, strategic alliance or similar Contracts (including Organizational Documents) or that relate to equityholder rights or registration rights, in each case, with any third party;
(viii) any pledge, security agreement or other similar Contract with respect to any real property or any material tangible or intangible personal property of the Company;
(ix) any Contract granting a termination notice by Seller and contemplating power of attorney or involving, other agency on behalf of any of the Sellers or reasonably anticipated to involve, the Company;
(x) any Contract that prohibits or otherwise restricts (A) the payment of dividends or delivery distribution in respect of the equity securities of the Company, (B) the pledging of the equity interests of the Company, or (C) the issuance of guarantees by the Company;
(xi) any outstanding loan agreements, guarantee agreements, bonds, letters of credit, escrows, other credit support or promissory notes relating to (A) Indebtedness for borrowed money of the Company and (B) any other Indebtedness or any of the assets or properties of the Company;
(xii) any Contract under which the Company has advanced or loaned any Person any amounts;
(xiii) any Contract which restricts or purports to restrict the Company from competing with any Person, soliciting employees or customers of any Person, or engaging in any activity or business in any geographic area or during any period of time, or which commit the Company to an exclusive purchase relationship with any vendor or to provide any product or service exclusively to a particular customer, or any Contract that provides for a most-favored pricing provision for any customer of the Business of cash Company;
(xiv) any Contract between the Material Customers or Material Vendors;
(xv) any redemption or purchase agreements or other consideration in an amount agreements affecting or having a value in excess relating to the equity securities of $250,000 in the aggregate in Company, including any calendar yearagreement with any equity holder of the Company which includes anti-dilution rights, right of first refusal, first offer rights, first negotiation rights, registration rights, voting or other party arrangements or operating covenants;
(xvi) any Contract that provides for: (A) the transfer of ownership of or distribution of any of the Company’s Intellectual Property; (B) the performance by exclusive license of any Intellectual Property, either in-license or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar yearout-license; or (C) the sale, lease or other disposition by or to license of trademarks of the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar yearCompany;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (Axvii) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing);
(x) any Contract, the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xiixviii) each Purchased any Contract set forth on Schedule 4.11(a)(xii)to commit to do or enter into any of the foregoing.
(b) Except as set forth on Schedule 4.11(bA true, correct and complete up-to-date copy of each written Material Contract (and any amendment or variation thereof) and other than with respect to the 787 Supply Agreement: (i) summary of each oral Material Contract is (and any amendment or variation thereof) has been delivered or made available to Purchaser. All of the Material Contracts are valid, in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and are enforceable obligation of Seller against the Company and, to Seller’s Knowledge, the Knowledge of the Sellers, are enforceable against the other party or parties thereto to such Material Contract in accordance with their terms, subject to the Enforceability Exception, and is immediately after the Closing, will continue in full force and effect and will continue to be enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has Enforceability Exception, in each case without breaching the terms thereof or resulting in the forfeiture or impairment of any rights thereunder. The Company is not violated in material breach or breached violation of or in any material respect or committed any material default under, any Material Contract (in each case, with the performance or without notice or lapse of time or both), nor is it in receipt observance of any written Claim of such default term or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurredprovision of, and no fact, circumstance or condition exists, event has occurred that (with or without notice or lapse of time time, or both) has (i) resulted would reasonably be expected to result in a material breach or violation of or breach of any provision of in material default under any Material Contract by Seller; (ii) given the Company, and, to the Knowledge of the Sellers, no counterparty to any Person the right to declare a Material Contract is in material breach, violation or default or exercise any remedy for breach under of any Material Contract; . The Company has not received written notice to terminate, repudiate or disclaim a Material Contract or materially vary, materially amend or grant a waiver of its terms, nor has the Company served any such notice on a counterparty to a Material Contract (iiiand, for the avoidance of doubt, for the purposes of this Section 4.11(b), an agreement to materially change the payment obligations of a counterparty to any such Material Contract shall constitute an material amendment to such Material Contract). The Company has not received any written or, to the Knowledge of the Sellers, other notice from any counterparty to any Material Contract of such party’s intention to terminate, not renew, cancel or materially decrease its business with the Company or any claims for damages or indemnification thereunder. There is no Action pending or threatened (in writing or, to the Knowledge of the Sellers, otherwise) given any Person by or against the unilateral right to accelerate the maturity of material obligations pursuant Company relating to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 1 contract
Contracts. (a) For purposes Section 3.13(a) of this Agreement, the Disclosure Schedule sets forth a complete and accurate list of each of the following shall constitute Contracts to which the Transferred Subsidiaries or, if Related to the Business or the ownership or operation of the Transferred Assets, to which any other member of the Seller Group is a “Material Contract”party or is bound by:
(i) each Purchased Contract relating to the employment (whether on a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control collective bargaining agreement or other Contract pursuant to which Seller is with any labor organization, trade union, works council or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000similar bargaining representative (a “Collective Agreement”);
(ii) except to a Contract, including customer contracts but excluding purchase orders and public tenders entered into in the extent included elsewhere in this Section 4.11(a)ordinary course of business consistent with past practice, each Purchased Contract relating in a material manner or primarily to for the acquisition, use, transfer, development, ownership, sharing or license sale of any Intellectual Property material to the conduct of product or service by the Business (other involving aggregate payments of more than nondisclosure agreements)$1,000,000 per year or $4,000,000 over the term of such Contract;
(iii) a Contract for the purchase by the Business of materials, supplies, equipment or services, including capital commitments or expenditures, involving aggregate payments of more than $1,000,000 per year or $4,000,000 over the term of such Contract;
(iv) a Contract (or group of related Contracts) under which any Transferred Subsidiary has created, incurred, assumed or guaranteed any Indebtedness related to the Transferred Assets or Transferred Subsidiaries, or issued any note or other evidence of Indebtedness to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Initial Closing), in each Purchased case in an amount greater than $1,000,000;
(v) any Contract creating that creates a Lien on the capital stock (or relating to comparable interest) of any of the Transferred Shares;
(vi) a Contract concerning the establishment, control, maintenance or operation of a partnership, limited liability company or joint venture or other similar venture agreement or arrangement;
(ivvii) each Purchased Contract with any customer or production supplier that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, Lease requiring (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess annual rentals of $250,000 in the aggregate in any calendar year; (B) the performance by 1,000,000 or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); more or (B) Buyer aggregate payments by or to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which any Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of its subsidiaries of $100,000 per annum2,000,000 or more to be made on or after the date hereof;
(viii) each Purchased a Contract with (A) any Affiliate of Seller pursuant to which a third party distributor (other than any employee affiliate of any Seller) has the right to distribute or resell products of the Business in a particular market and (B) any involving aggregate payments in excess of $1,000,000 per year or $2,000,000 over the Persons identified on Schedule 4.11(a)(viii)term of such Contract;
(ix) each note, debenture, bondany Contract that is a mortgage, indenture, guaranteeguaranty, loan, loan or credit or financing agreement, instrument security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any Transferred Assets or assets or properties of any Transferred Subsidiary, other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing)than Permitted Liens;
(x) any ContractContract for the acquisition of any Person or any business unit thereof or the disposition of any assets, other than Contracts (A) for acquisitions or dispositions of Inventory in the primary subject matter ordinary course of which is confidentiality, nondisclosure business consistent with past practice or (B) for acquisitions or dispositions that were consummated more than two (2) years prior to the date hereof;
(xi) any royalty or similar agreement Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business consistent with past practice;
(xiii) any Contract with any Governmental Entity, other than purchase orders or tender offers made in the ordinary course of business consistent with past practice;
(xiv) any Contract relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise) under which the Transferred Subsidiaries have an obligation with respect to confidentiality arrangements executed by an “earn out,” contingent purchase price or on behalf similar contingent payment obligation, or deferred purchase price payment obligation;
(xv) any Contract containing covenants that restrict or limit in any material respect the ability of Seller the Transferred Subsidiaries to engage in the Business or compete with respect to the Business with any Person or in any geographic area;
(xvi) any material Contract that contains a provision or covenant that by its express terms provides for exclusive dealings, “most favored nation” or other similar requirements in favor of any Person with respect to any material asset, product or service of the Business;
(xvii) (A) any Contract providing for employment or engagement of any Employee the performance of which mandates payment of annual compensation in excess of $50,000 and (B) each change in control, retention or similar Contracts with any Employee;
(xviii) any Contract that is a settlement, conciliation or similar agreement with any Governmental Entity or pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligation after the date of this Agreement;
(xix) any Contract under which any Seller or any subsidiary thereof has advanced or loaned any material amount to any director or officer of any of the Transferred Subsidiaries or any Employee, in each case outside of the ordinary course of business consistent with past practice;
(xx) any Contract (A) between any Seller or a Transferred Subsidiary, on the one hand, and an affiliate of any Seller, or any director, officer or equity holder of such affiliate, on the other hand and (B) between any Seller or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiary, on the other hand;
(xxi) any material Contracts related to the development or co-development of Intellectual Property; and any Contract that is or contains licenses, sublicenses or other provisions under which a Seller or Transferred Subsidiary (A) is granted rights by others in Intellectual Property, other than Standard Agreements, and (B) has granted rights to others in Intellectual Property, other than Standard Agreements and non-exclusive licenses granted to customers pursuant to customer agreements entered into in the ordinary course of business consistent with past practice;
(xxii) any Contract pursuant to which any third party owes an obligation of confidentiality to Seller in relation Person provides support or maintenance for IT Systems material to the Business;
(xixxiii) each Purchased any Contract which createsthat involves the resolution, conciliation or may create, an Encumbrance settlement of any Claim that has not been fully performed by any Seller or any subsidiary thereof or otherwise imposes remaining obligations on any Purchased Asset in an amount such Seller or with a value such subsidiary thereof relating to the Business in excess of $50,0001,000,000 in any individual instance;
(xxiv) a Contract that is required to be filed by ▇▇▇▇▇▇▇▇ as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act or disclosed by ▇▇▇▇▇▇▇▇ on a current report on Form 8-K; and
(xiixxv) each Purchased any other Contract not otherwise required to be set forth in any section or subsection of the Disclosure Schedule that (A) involves an aggregate future Liability to any person (other than any Seller or the Transferred Subsidiaries) in excess of $2,500,000 and (B) that is not terminable without payment or penalty on Schedule 4.11(a)(xii)thirty (30) calendar days’ (or less) notice.
(b) Except as All Contracts required to be set forth on in Section 3.11 and Section 3.13 of the Disclosure Schedule 4.11(b(such Contracts, the “Business Contracts”) are valid, binding and other than with respect in full force and effect, subject, as to enforcement, to the 787 Supply Agreement: (i) each Material Contract is Enforceability Exceptions, except for such failures to be valid, binding and in full force and effect and (ii) each that would not reasonably be expected to have a Material Contract constitutes a legalAdverse Effect. No member of the Seller Group is in breach or default under the Business Contracts, valid, binding and enforceable obligation of Seller and, to Seller’s Knowledgethe Knowledge of Sellers, no other party to any Business Contract, is in material breach or material default thereunder. Since December 31, 2016, no member of the Seller Group has received any written or, to the Knowledge of Sellers, oral, threat of termination, withdrawal or cancellation from any other party to a Business Contract that such party intends to terminate or parties thereto not renew such Business Contract. The Sellers have made available to Purchaser true and is enforceable in accordance complete copies of each Business Contract, together with its terms, subject only to applicable bankruptcy, insolvency, reorganization all material amendments and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generallysupplements thereto.
(c) Except as set Section 3.13(c) of the Disclosure Schedule sets forth on Schedule 4.11(c) a true, complete and other than with respect to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a accurate list of all written Material Business Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case effective as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to BuyerAgreement that are Mixed-Used Contracts.
Appears in 1 contract
Contracts. (a) For purposes of this AgreementSchedule 2.21 sets forth an accurate, each correct and complete list of the following shall constitute contracts, agreements, arrangements or instruments (the "Contracts") in effect at any time from January 1, 1996 through the date hereof, to which the Company or any Subsidiary is or was a “Material Contract”party, by which it is bound or pursuant to which the Company or any Subsidiary is or was an obligor or a beneficiary:
(i) each Purchased Contract relating Any material contracts with respect to the employment tangible property other than Real Property which are included on Schedule 2.17, all Contracts with affiliates (whether on a full-timeor not material) other than employment agreements providing for an annual salary and bonus of less than $100,000 or option agreements, part-timematerial license agreements, termination agreements, consulting or other basis) of any Employee of the Businessseverance agreements, and any “stay pay,” termination, change of control agreements relating to labor or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000collective bargaining matters;
(ii) except to Any Contract for capital expenditures or services by the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner Company or primarily to any Subsidiary which involves consideration payable by the acquisition, use, transfer, development, ownership, sharing Company or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements);
(iii) each Purchased Contract creating or relating to any partnership, limited liability company or joint venture or similar venture or arrangement;
(iv) each Purchased Contract with any customer or production supplier that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value Subsidiary in excess of $250,000 in the aggregate any fiscal year;
(iii) Any Contract evidencing any indebtedness for borrowed money in any calendar year; (B) the performance by excess of $ 250,000 or obligation for the Business deferred purchase price of services in an amount or having a value assets in excess of $250,000 in the aggregate in (excluding normal trade payables) or guaranteeing any calendar year; or (C) the saleindebtedness, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value obligation nor liability in excess of $250,000 in $ 250,000;
(iv) Any Contract wherein the aggregate in Company or any calendar yearSubsidiary has agreed to a non-competition provision;
(v) Any joint venture, partnership, cooperative arrangement or any other Contract involving a sharing of profits;
(vi) each Seller Any Contract imposing with any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the Governmental Entity other than for services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conductedordinary course of business;
(vii) each Purchased Manufacturers' representative, sales agency, dealer or advertising Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments is not terminable on notice without cost or other consideration in excess of $100,000 per annumliability to the Company or any Subsidiary;
(viii) each Purchased Contract with (A) for the conversion of any Affiliate obligation, instrument or security, into debt or equity securities of Seller (the Company or any Subsidiary other than any employee of Seller) the Securities, the Stock or (B) any of the Persons identified on Schedule 4.11(a)(viii)Warrant;
(ix) each note, debenture, bond, indenture, guarantee, loan, credit Settlement agreement of any material administrative or financing agreement, instrument or judicial proceeding within the past five years other evidence of, or Contract for, Indebtedness than those the effect of Seller secured by or providing Encumbrances on which is reflected in the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing)Financial Statements;
(x) any ContractAny power of attorney, the primary subject matter of which is confidentiality, nondisclosure proxy or similar agreement with respect to confidentiality arrangements executed instrument granted by or on behalf of Seller with respect to the Business pursuant to which Company or any third party owes an obligation Subsidiary other than in the ordinary course of confidentiality to Seller in relation to the Business;business consistent with past practice; and
(xi) Any other material Contract related to the business of the Company or any Subsidiary, as currently conducted or any other Contract not in the ordinary course of business of the Company consistent with past practice. Accurate, correct and complete copies of each Purchased such written Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess and written summaries of $50,000; and
(xii) each Purchased such oral Contract set forth on Schedule 4.11(a)(xii)have been delivered by the Company to the Buyer.
(b) Except as set forth Each Contract listed or referred to on Schedule 4.11(b) and other than with respect 2.21 to which the 787 Supply Agreement: (i) each Material Contract Company or any Subsidiary is a party, by which it is bound or pursuant to which the Company or any Subsidiary is an obligor or a beneficiary is in full force and effect, except where the failure to be in full force and effect will not cause a Material Adverse Effect. The Company and (ii) each Subsidiary has complied with all commitments and obligations on its part to be performed or observed under each such Contract, except for such noncompliance which is not reasonably likely, individually or in the aggregate, to have a Material Adverse Effect. To the knowledge of the Company, each party to each such Contract other than the Company or any Subsidiary has complied, and is in continuous compliance, with all commitments and obligations on its part to be performed or observed thereunder, except for such noncompliance which is not reasonably likely, individually or in the aggregate, to have a Material Adverse Effect. The Company has not received any notice of a default under any such Contract and no event or condition has happened or presently exists which constitutes a legaldefault or, validafter notice or lapse of time or both, binding would constitute a default under any such Contract, except for such notices and enforceable obligation of Seller anddefaults which are not reasonably likely, individually or in the aggregate (together with the items set forth in Schedule 2.21 annexed hereto), to Seller’s Knowledge, of the other party or parties thereto and is enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generallyhave a Material Adverse Effect.
(c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default under2.21, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt no consent of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant party to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date Contracts is required in connection with the execution, delivery and performance of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to BuyerAgreement by the Company.
Appears in 1 contract
Contracts. (a) For purposes Section 2.13 of the Disclosure Schedule lists the following agreements (written or oral) to which the Company is a party as of the date of this Agreement, each of the following shall constitute a “Material Contract”:
(i) each Purchased Contract relating to any agreement (or group of related agreements) for the employment (whether on a full-time, part-time, consulting or other basis) lease of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000;
(ii) except to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements);
(iii) each Purchased Contract creating or relating to any partnership, limited liability company or joint venture or similar venture or arrangement;
(iv) each Purchased Contract with any customer or production supplier that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by personal property from or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or third parties providing for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annumannum or having a remaining term longer than 12 months;
(ii) any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, (B) which involves more than the sum of $100,000, or (C) in which the Company has granted manufacturing rights, “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any products or territory or has agreed to purchase a minimum quantity of goods or services or has agreed to purchase goods or services exclusively from a certain party;
(iii) any agreement which, to the knowledge of the Company, establishes a partnership or joint venture;
(iv) 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) involving more than $100,000 or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or noncompetition;
(vi) any employment or consulting agreement;
(vii) any agreement involving any officer, director or stockholder of the Company or any affiliate, as defined in Rule 12b-2 under Exchange Act, thereof (an “Affiliate”);
(viii) each Purchased Contract with (A) any Affiliate agreement under which the consequences of Seller (other than any employee of Seller) a default or (B) any of the Persons identified on Schedule 4.11(a)(viii)termination would reasonably be expected to have a Company Material Adverse Effect;
(ix) each noteany agreement which contains any provisions requiring the Company to indemnify any other party thereto (excluding indemnities contained in agreements for the purchase, debenture, bond, indenture, guarantee, loan, credit sale or financing agreement, instrument or other evidence of, or Contract for, Indebtedness license of Seller secured by or providing Encumbrances on products entered into in the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financingOrdinary Course of Business);
(x) any Contract, other agreement (or group of related agreements) either involving more than $100,000 or not entered into in the primary subject matter Ordinary Course of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;; and
(xi) each Purchased Contract any agreement, other than as contemplated by this Agreement, relating to the sales of securities of the Company to which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with the Company is a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii)party.
(b) Except The Company has delivered or made available to the Parent a complete and accurate copy of each agreement listed in Section 2.13 of the Disclosure Schedule. With respect to each agreement so listed, and except as set forth on Schedule 4.11(b) and other than with respect to in Section 2.13 of the 787 Supply AgreementDisclosure Schedule: (i) each Material Contract the agreement is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller andand in full force and effect; (ii) the agreement will continue to be legal, to Seller’s Knowledgevalid, of binding and enforceable and in full force and effect immediately following the other party or parties thereto and is enforceable Closing in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except the terms thereof as set forth on Schedule 4.11(c) and other than with respect in effect immediately prior to the 787 Supply Agreement: Closing; and (iiii) Seller has the Company is not violated nor, to the knowledge of the Company, is any other party, in breach or breached in any material respect violation of, or committed any material default under, any Material Contract (in each casesuch agreement, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no factis pending or, circumstance or condition existsto the knowledge of the Company, that (is threatened, which, after the giving of notice, with or without notice or lapse of time time, or both) has (i) resulted in otherwise, would constitute a material violation breach or breach default by the Company or, to the knowledge of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respectCompany, any Material Contractother party under such contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 1 contract
Contracts. (a) For purposes of this Agreement, each Section 2.14(a) of the Disclosure Letter lists the following shall constitute agreements (written or oral) to which the Company or any Subsidiary is a “Material Contract”party as of the date of the Original Merger Agreement:
(i) each Purchased Contract relating any agreement (or group of related agreements) for the lease of personal property from or to the employment (whether on a full-time, part-time, consulting or other basis) third parties providing for lease payments in excess of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,0005,000 per annum;
(ii) except to any agreement for the extent included elsewhere purchase or sale of products or for the furnishing or receipt of services, providing for payments by the Company in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license excess of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)$5,000 per annum;
(iii) each Purchased Contract creating any agreement concerning the establishment or relating to any operation of a partnership, limited liability company or joint venture or similar venture or arrangementlimited liability company;
(iv) each Purchased Contract any agreement 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 Security Interest on any of its assets, tangible or intangible;
(v) any agreement for the disposition of any material portion of the assets or business of the Company or any Subsidiary (other than sales of products or services in the Ordinary Course of Business) or any agreement for the acquisition of the assets or business of any other entity (other than purchases of inventory and supplies in the Ordinary Course of Business);
(vi) any agreement concerning confidentiality or noncompetition (other than those entered into with third parties relating to a sale of the Company or all or substantially all of the assets of the Company and the Subsidiaries that (x) were entered into during the calendar month of September 2005 and (y) are substantially similar in form and substance to the Confidentiality Agreement (as defined in Section 9.3);
(vii) any customer employment or production supplier that involvesconsulting agreement;
(viii) any agreement involving any current or former officer, director or shareholder of the Company or an Affiliate thereof;
(ix) any agreement under which the consequences of a default or termination would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of have a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing)Company Material Adverse Effect;
(x) any Contract, the primary subject matter of agreement which is confidentiality, nondisclosure not cancelable upon notice of sixty (60) days or similar agreement with respect to confidentiality arrangements executed less which provides for payments by or on behalf the Company in excess of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;$5,000 per annum; and
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset other agreement not entered into in an amount or with a value in excess the Ordinary Course of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii)Business.
(b) Except as set forth on Schedule 4.11(b) The Company has delivered, or Made Available, to the Buyer a complete and other than with accurate copy of each agreement listed in Section 2.13 or Section 2.14 of the Disclosure Letter. With respect to the 787 Supply Agreementeach agreement so listed: (i) each Material Contract the agreement is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller and, to Seller’s Knowledge, of the other party or parties thereto and is enforceable in accordance with its termsfull force and effect, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws reorganization, moratoriums or similar laws now or hereafter in effect relating to creditor's rights generally or to general principles of general application affecting enforcement of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breachequity; and (ii) neither the Company nor any Subsidiary nor, to the Knowledge knowledge of Sellerthe Company, no any other Person has violated party, is in material breach or breached in any material respectviolation of, or committed any material default under, any Material Contract (in each casesuch agreement, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, and no event or development has occurred, and no factis pending or, circumstance or condition existsto the knowledge of the Company, that (is threatened, which, after the giving of notice, with or without notice or lapse of time time, or both) has (i) resulted in otherwise, would constitute a material violation breach or breach default by the Company or any Subsidiary or, to the knowledge of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respectCompany, any Material Contractother party under such agreement.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Brookdale Senior Living Inc.)
Contracts. (a) For purposes of this Agreement, each of the following shall constitute a “Material Contract”:
The Company is not bound by (i) each Purchased any Contract which contains restrictions with respect to payment of dividends or any other distribution in respect of its capital stock; (ii) any Contract requiring the Company to make future capital contributions to any entity; (iii) other than as set forth in the SEC Reports, any Contract relating to the employment (whether on a full-time, part-time, consulting any indebtedness or other basis) of any Employee Liability of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000;
(ii) except to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements);
(iii) each Purchased Contract creating or relating to any partnership, limited liability company or joint venture or similar venture or arrangement;
(iv) each Purchased Contract with any customer or production supplier that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure Company in excess of $2,000,000;
100.00; (iv) other than as set forth in the SEC Reports, any loan or advance by the Company to any Related Party; (v) each Purchased other than as set forth in the SEC Report, any management, service, consulting or any other similar type of Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery requiring payment of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value fees in excess of $250,000 in the aggregate in any calendar year25,000 per annum; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any materialmaterial warranty, explicit restriction on guaranty or similar undertaking with respect to contractual performance extended by the right or ability Company other than in the ordinary course of business; (Aviii) other than as set forth in the Business to (1) compete with, or solicit the services or employment ofSEC Reports, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration payment in excess of $100,000 per annum;
annum that cannot be terminated by the Company that is a party to such Contract without material liability upon less than ninety (viii90) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing);
days’ notice; (x) any ContractContract that governs any joint venture, the primary subject matter partnership or other cooperative arrangement or any other relationship involving a sharing of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
profits; (xi) each Purchased any Contract which creates, that would result in the merger with or may create, an Encumbrance on into or consolidation into another Person; (xii) any Purchased Asset in an amount or Contract for the sale of any of the assets of the Company with a value sale price in excess of $50,000100,000; and
(xiixiii) any material Contract that requires a consent to or 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 hereby and thereby (each Purchased Contract set forth on Schedule 4.11(a)(xiiof (i) to (xiii) above, a “Material Contract”).
(b) Except as set forth on Schedule 4.11(b) and other Other than Material Contracts which have terminated or expired in accordance with respect to the 787 Supply Agreement: (i) their terms, each Material Contract is in full force a valid and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation agreement of Seller the Company and, to Seller’s Knowledgethe Knowledge of the Company, each of the other party or parties thereto and is thereto, enforceable against the Company in accordance with its terms, subject only to applicable the effects of bankruptcy, insolvency, reorganization and fraudulent conveyance, reorganization, moratorium Laws and other similar Laws of general application relating to or affecting enforcement of creditors’ rights generally.
, and general equitable principles (c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has whether considered in a proceeding in equity or at Law). The Company is not violated in breach of, or breached in any material respect or committed any material default under, any Material Contract (in each caseto which it is a party, with except for such breaches or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, defaults that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting would not have a Material Contract (including any oral or unwritten amendments thereto), in each case as of Adverse Effect on the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to BuyerCompany.
Appears in 1 contract
Sources: Securities Purchase Agreement (Collective Audience, Inc.)
Contracts. (a) For purposes of this Agreement, each of SCHEDULE 7.6 lists the following shall constitute a “Material Contract”Assigned Contracts of Seller whether oral or written:
(i) each Purchased Contract relating to the employment (whether on a full-timeEach contract with any dealer, part-timedistributor, consulting broker, agent or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000sales representative;
(ii) except to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct Substantially all of the Business executory or partially executory contracts, agreements, or commitments for delivery by Seller of its products or services and which have a term extending for more than thirty (other than nondisclosure agreements)30) days from the date of this Agreement;
(iii) each Purchased Contract creating Substantially all of the, contracts, agreements or relating to arrangements involving an expenditure by Seller of more than $75,000 per year for the purchase of any partnershipservices, limited liability company materials, supplies or joint venture or similar venture or arrangementequipment and which are not terminable by Seller upon not more than sixty (60) days notice;
(iv) each Purchased Contract with any customer Each contract or production supplier that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure commitment for capital expenditures in excess of $2,000,00075,000;
(v) each Purchased Contract Any other contract continuing over a period of more than twelve (12) months from its date, which is not with customers or production suppliers that may not be terminated (without penalty) terminable by Seller within thirty upon not more than sixty (3060) days after the delivery of a termination days' notice and requires an expenditure by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of more than $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year75,000;
(vi) each Seller Contract imposing Each agreement for the sale of any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conductedcapital asset;
(vii) Each employment contract or agreement between Seller and any officer, consultant, director, independent contractor or employee, including any confidentiality or non-compete agreements, any arrangements which encourage or compensate employees of Seller to accept employment or stay with Purchaser following the Closing Date, each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from collective bargaining agreement and any other Person involving lease payments agreement with any labor union, work council or other consideration in excess of $100,000 per annumassociation;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee To the Knowledge of Seller) , any contract or (B) any of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances agreement not otherwise listed above which has a material impact on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing);
(x) any Contract, the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii).
(b) Except as set forth on Schedule 4.11(b) and other than with respect to the 787 Supply Agreement: (i) each Material SCHEDULE 7.6, Each Assigned Contract is in full force and effect and (ii) each Material Contract constitutes is assignable to Purchaser without the consent or approval of a legalthird party, validand Seller has in all respects performed all the obligations required to be performed by it to date, binding and enforceable obligation of Seller and, to Seller’s Knowledge, of the other party or parties thereto and is enforceable not in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(c) and other than with default or breach in any respect to the 787 Supply Agreement: (i) Seller has under any Assigned Contract except for possible defaults or breach which do not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to impair the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as ability of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available Business to Buyerconduct its operations as heretofore conducted.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Carlisle Companies Inc)
Contracts. (a) For purposes of this Agreement, each Section 2.13 of the Disclosure Schedule lists the following shall constitute a “Material Contract”:
(i) each Purchased Contract relating to the employment (whether on a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant written agreements to which Seller the Company or the Subsidiary is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000;
(ii) except to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements);
(iii) each Purchased Contract creating or relating to any partnership, limited liability company or joint venture or similar venture or arrangement;
(iv) each Purchased Contract with any customer or production supplier that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing);
(x) any Contract, the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii).
(b) Except as set forth on Schedule 4.11(b) and other than with respect to the 787 Supply Agreement: (i) each Material Contract is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller and, to Seller’s Knowledge, of the other party or parties thereto and is enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true:
(i) any agreement (or group of related agreements) for the lease of personal property from or to third parties providing for lease payments in excess of $50,000 per annum or having a remaining term longer than twelve (12) months;
(ii) any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, correct (B) which involves more than the sum of $50,000 or (C) which is not terminable without cause on ninety (90) days notice or less;
(iii) any agreement concerning the establishment or operation of a partnership, joint venture or limited liability company or other agreement involving sharing of profits, costs or liabilities with any other Person;
(iv) 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) involving more than $50,000 or under which it has imposed (or may impose) a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible;
(v) any agreement for the disposition of any portion of the assets or business of the Company (other than sales of products in the Ordinary Course of Business) or any agreement for the acquisition of the assets or business of any other entity (other than purchases of inventory or components in the Ordinary Course of Business);
(vi) any agreement concerning noncompetition;
(vii) any employment, sales representative or consulting agreement;
(viii) any agreement involving any current officer, director or shareholder of the Company or an Affiliate thereof;
(ix) any agreement concerning any Company Intellectual Property; and
(x) any other agreement that is material to the business of the Company, the Subsidiary, or both.
(b) Other than items 5 through 11 in subsection (x) of Section 2.13 of the Disclosure Schedule, the Company has made available to the Buyer in the data room a complete and complete accurate copy of each written agreement listed in Section 2.11(e) and Section 2.13 of the Disclosure Schedule. With respect to each agreement made available: (i) the agreement is valid and in full force and effect and constitutes a legal, valid and binding agreement of the Company or the Subsidiary, as the case may be, and to the Knowledge of the Company, the other party or parties thereto, enforceable in accordance with its terms; and (ii) neither the Company nor, to the Knowledge of the Company, any other party, is in breach or violation of, or default under, any such agreement. Except as set forth in Section 2.13(b) of the Disclosure Schedule, neither the Company nor the Subsidiary is a party to any oral agreement of the type described in clauses (i) through (x) of Section 2.13(a).
(c) Section 2.13(c) of the Disclosure Schedule describes the general terms and conditions of actual practices relating to the agreements, whether written Material Contract (including all amendments thereto) has been made available to Buyeror oral, between the Company or the Subsidiary and their sales representatives.
Appears in 1 contract
Contracts. (a) For purposes of this Agreement, each Section 3.9(a) of the following shall constitute Company’s Disclosure Letter contains a listing of all Contracts described in clauses (i) through (xxi) below (collectively, such Contracts that are listed or should be listed in Section 3.9(a) of the Company’s Disclosure Letter, “Material ContractContracts”:) to which any OppFi Company is a party to, or otherwise bound. No OppFi Company is a party to, or otherwise bound by, any (other than any Contracts that are no longer in effect and under which no OppFi Company has any continuing or potential Liability):
(i) each Purchased Contract relating to the employment (whether on a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000collective bargaining agreement;
(ii) except Contract with any Material Vendor that required payments to such Material Vendor by one or more OppFi Companies during the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license 2020 calendar year of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)an aggregate amount exceeding $1,000,000;
(iii) each Purchased Contract creating or relating to any partnership, limited liability company or joint venture or similar venture or arrangementMaterial Lease;
(ivx) each Purchased Contract with for the employment or engagement of any customer or production supplier that involvesdirectors, officers, employees, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure individual independent contractors providing for an annual base compensation in excess of $2,000,000300,000, (y) Contract providing for severance payments in excess of $300,000, in the aggregate, or (z) Contract requiring the payment of any compensation by any OppFi Company that is triggered as a result of the consummation of the transactions contemplated by this Agreement;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involvingunder which any OppFi Company has created, incurred, assumed, or reasonably anticipated to involveborrowed any money or issued any note, (A) the payment or delivery by or to the Business of cash indenture, or other consideration evidence of Indebtedness or guaranteed Indebtedness of others, in each case having an outstanding principal amount or having a value in excess of $250,000 in 500,000 (other than borrowings under the aggregate in any calendar year; (B) existing credit facilities of the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar yearOppFi Companies);
(vi) each Seller written license or royalty Contract imposing licensing-in or granting to any materialOppFi Company any right in or immunity under any Intellectual Property, explicit restriction on other than Contracts (w) concerning uncustomized, commercially available Software (whether software, software-as-a-service services, platform-as-a-service services, and/or infrastructure-as-a-service services) licensed for less than $500,000 in annual fees; (x) that are immaterial to the right or ability business of the OppFi Companies; (Ay) the Business that include a license in of any commercially available Intellectual Property pursuant to (1) compete withstock, boilerplate, or solicit the services other generally non-negotiable terms, such as, for example, website and mobile application terms and conditions or employment ofterms of use, any other Person; (2) sell any product or other Assetstock photography licenses, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Personand similar Contracts; or (4z) develop, use, sell, enforce or license any whereby Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conductedis implicitly licensed;
(vii) each Purchased written license or royalty Contract licensing out or granting any rights in or immunity under any Owned Intellectual Property to any Person (other than another OppFi Company), other than Contracts (x) pursuant to which Seller an OppFi Company grants non-exclusive licenses that are immaterial to the business of the OppFi Companies; (Ay) leases whereby Owned Intellectual Property is non-exclusively implicitly licensed or subleases non-exclusively licensed to service providers, subcontractors, or suppliers of any real property OppFi Company solely to the extent necessary for such Person to provide services thereto; or (Bz) leases or subleases any buildings, structures, improvements or appurtenances, pursuant to which an OppFi Company grants non-exclusive licenses of Owned Intellectual Property to customers in whole or in part, from any other Person involving lease payments or other consideration in excess the Ordinary Course of $100,000 per annumBusiness;
(viii) each Purchased Contract with that the Company reasonably expects will require aggregate future payments to or from any OppFi Company in excess of $1,000,000 in the twelve (A) any Affiliate of Seller (12)-month period immediately following Closing, other than any employee those that can be terminated without material penalty by such OppFi Company upon ninety (90) days’ notice or less and can be replaced with a similar Contract on materially equivalent terms in the Ordinary Course of SellerBusiness; provided that the listing of a Contract on Section 3.9(a)(viii) or (B) any of the Persons identified on Schedule 4.11(a)(viii)Company’s Disclosure Letter is not a representation or warranty that such Contract will actually require aggregate future payments in such period in excess of $1,000,000;
(ix) each notejoint venture, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence ofpartnership, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing)similar Contract;
(x) other than this Agreement, Contract for the sale or disposition of any Contractmaterial assets or Equity Interests of any OppFi Company with an aggregate fair market value greater than $1,000,000 (other than those providing for sales or dispositions of (x) assets and inventory in the Ordinary Course of Business, (y) assets no longer used in the primary subject matter businesses of the OppFi Companies, and (z) non-exclusive licenses of Owned Intellectual Property granted to customers in the Ordinary Course of Business), in each case, under which is confidentialitythere are material outstanding obligations of the applicable OppFi Company (including any sale or disposition agreement that has been executed, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Businessbut has not closed);
(xi) each Purchased Contract which createsthat materially limits or restricts, or may createpurports to limit or restrict, an Encumbrance on any Purchased Asset OppFi Company (or after the Closing, the Buyer or any OppFi Company) from engaging or competing in an amount any line of business or business activity in any jurisdiction;
(xii) Contract that contains a provision providing for the sharing of any revenue or cost-savings with any other Person in excess of $1,000,000 in any one-year period;
(xiii) Contract involving the payment of any earnout or similar contingent payment with a value in excess of $50,000; and500,000 in any single instance or in excess of $2,000,000 in the aggregate;
(xiixiv) each Purchased Contract set forth on Schedule 4.11(a)(xii).involving the settlement, conciliation or similar agreement of any Proceeding or threatened Proceeding (x) involving payments (exclusive of attorney’s fees) in excess of $500,000 in any single instance or in excess of $2,000,000 in the aggregate, or (y) that by its terms limits or restricts any OppFi Company from engaging or competing in any line of business in any jurisdiction;
(bxv) Except as set forth on Schedule 4.11(bContract requiring any capital commitment or capital expenditure (or series of capital commitments or expenditures) following the Closing Date by any OppFi Company in an amount in excess of $500,000 annually or $2,000,000 over the life of the Contract;
(xvi) Contract that relates to the future acquisition of material business, assets or properties by any OppFi Company (including the acquisition of any business, stock or material assets of any Person or any real property and whether by merger, sale of stock, sale of assets or otherwise) for a purchase price in excess of $1,000,000 in any single instance or in excess of $3,000,000 in the aggregate, except for (x) any agreement related to the transactions contemplated by this Agreement, (y) any non-disclosure, indications or interest, term sheets, letters of intent or similar agreements entered into in connection with such acquisitions, and (z) any agreement for the purchase of inventory or other assets or properties in the Ordinary Course of Business;
(xvii) Contract pursuant to which any Person (other than with respect to an OppFi Company) has guaranteed the 787 Supply Agreement: (i) each Material Contract is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation Liabilities of Seller and, to Seller’s Knowledge, of the other party or parties thereto and is enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.an OppFi Company;
(cxviii) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modifylimiting, in any material respect, the freedom of any Material Contract.OppFi Company to compete in any line of business or industry, with any Person or in any geographic area;
(exix) Schedule 4.11(esupervisory Contract with a Governmental Entity;
(xx) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of conditional approval from any oral or unwritten Governmental Entity for any Company Permit; or
(xxi) Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as set forth on Section 3.20 of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to BuyerCompany’s Disclosure Letter.
Appears in 1 contract
Sources: Business Combination Agreement (FG New America Acquisition Corp.)
Contracts. (a) For purposes of this Agreement, each SCHEDULE 3.15(a) sets forth a complete list of the following shall constitute a “Material Contract”:contracts, commitments and obligations (whether written or oral) of the Company (collectively with the Leases and the Employment Agreements, the "Scheduled Contracts"):
(i) each Purchased Contract relating between the Company and (A) each present or former director, officer or other member of management or other personnel of the Company, (B) any supplier of services or products to the employment (whether on a full-time, part-time, consulting Company whose dollar volume of sales to the Company exceeded $10,000 in 1996 or other basis) of any Employee of the Businessis expected to exceed $10,000 in 1997, and (C) any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for Person in which the cost of aggregate payments made to the Company under such severance, termination Contract exceeded $10,000 in 1996 or relocation payment would is expected to exceed $30,00010,000 in 1997;
(ii) except each other agreement or arrangement of the Company that (A) requires the payment or incurrence of Liabilities or the rendering of services by the Company, subsequent to the extent included elsewhere in date of this Section 4.11(a)Agreement, each Purchased Contract relating in a material manner or primarily to of more than $10,000 and (B) cannot be terminated without charge by the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)Company within 30 days;
(iii) each Purchased Contract creating all Contracts relating to, and evidences of or relating to guarantees of, or providing security for, indebtedness for borrowed money or the deferred purchase price of property (whether incurred, assumed, guaranteed or secured by any partnership, limited liability company or joint venture or similar venture or arrangementasset);
(iv) each Purchased Contract with any customer all partnership, joint venture or production supplier that involvesother similar Contracts, arrangements or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000agreements;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business extent that any of cash or other consideration in an amount or having a value the following provide for annual payments by the Company in excess of $250,000 in 10,000 and cannot be terminated without charge by the aggregate in any calendar year; (B) the performance by Company within 30 days, all license, distribution, commission, marketing, agent, franchise, technical assistance or similar agreements relating to or providing for the Business marketing and/or sale of the products or services in an amount to which the Company is a party or having a value in excess of $250,000 in by which the aggregate in any calendar yearCompany is otherwise bound; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;and
(vi) each Seller Contract imposing any materialall other material contracts, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere commitments and obligations that are not in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any ordinary course of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing);
(x) any Contract, the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii).
(b) Except as set forth on Schedule 4.11(b) disclosed in SCHEDULE 3.15(b), each Scheduled Contract and other than with respect to the 787 Supply Agreement: (i) each Subsequent Material Contract is in full force and effect and (ii) each Material Contract constitutes a legal, valid, valid and binding and enforceable obligation of Seller the Company and, to Seller’s Knowledge, the Knowledge of the Company and Stockholder, each other party or parties thereto thereto, enforceable (except to the extent such enforceability may be limited by bankruptcy, equity and is enforceable creditors' rights generally) against the Company and, to the Knowledge of the Company and Stockholder, each such other party in accordance with its terms, subject only and neither the Company nor, to applicable bankruptcythe Knowledge of the Company and Stockholder, insolvency, reorganization any other party thereto is in material default or has failed to perform any material obligation thereunder. Complete and moratorium Laws and other Laws correct copies of general application affecting enforcement of creditors’ rights generallyeach written Scheduled Contract have been delivered to Buyer.
(c) Except as set SCHEDULE 3.15(c) sets forth on Schedule 4.11(ca list (by name and address) of the 10 largest customers of and other than with respect the 10 primary vendors providing services to the 787 Supply Agreement: (i) Seller has not violated Company from January 1, 1997 to November 12, 1997 together with the approximate dollar amount of sales by or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) services provided to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both)Company during said period.
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 1 contract
Sources: Stock Purchase Agreement (Aftermarket Technology Corp)
Contracts. (a) For purposes Section 4.13(a) of this Agreementthe Company Disclosure Letter sets 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 to 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 shall constitute a “Material Contract”categories:
(i) each Purchased any joint venture, partnership, or strategic alliance Contract relating to the employment (whether on with a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for Third Party member in which the cost of such severance, termination Company or relocation payment would exceed $30,000any Company Subsidiary owns an Equity Interest;
(ii) except (A) any Contract for land acquisition (including options to purchase land) that requires future aggregate expenditures by the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner Company or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business Company Subsidiaries in an amount in excess of one million dollars ($1,000,000) per annum individually, (B) any Contract with respect to land development or vertical construction that requires future aggregate expenditures by the Company or any of the Company Subsidiaries in an amount in excess of two million five hundred thousand dollars ($2,500,000) per annum individually or (C) any other Contract that requires future aggregate expenditures by the Company or any of the Company Subsidiaries in an amount in excess of five hundred thousand dollars ($500,000) per annum individually, other than nondisclosure agreements)any purchase order or Contract for supply, inventory, trade contractors, consultants or trading stock acquired in the ordinary course of business;
(iii) each Purchased Contract creating or relating to any partnershipsettlement, limited liability company or joint venture conciliation or similar venture Contract (A) (1) with any Governmental Entity that has continuing obligations as of the date of this Agreement or arrangement(2) that was entered into in the twelve (12) months prior to the date of this Agreement, (B) that requires the Company or any of the 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) each Purchased any Contract that 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 customer or production supplier that involvesPerson, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year)in each case, the payment or expenditure in excess of $2,000,000any geographic area;
(v) each Purchased other than Contracts listed in Section 4.13(a)(ii), any Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) that relates to any completed acquisition, divestiture, merger or similar transaction and contains representations, covenants, indemnities or other obligations that remain in effect (excluding any transactions solely among the payment or delivery by or Company and any wholly owned Company Subsidiary) and that are material to the Business business of cash the Company and the Company Subsidiaries, taken as a whole, or pursuant to which the Company or any Company Subsidiary has continuing “earn-out” or other consideration in an amount or having a value similar contingent payment obligations following the date hereof in excess of one hundred thousand dollars ($250,000 in the aggregate in any calendar year; 100,000), (B) for any pending acquisition, directly or indirectly (by merger or otherwise) of a portion of the performance by assets (other than goods, products or for the Business of services in an amount the ordinary course of business) or having a value Equity Interests of any Person (1) for aggregate consideration in excess of one hundred thousand dollars ($250,000 100,000) or (2) pursuant to which the Company or any Company Subsidiary has continuing “earn-out” or other similar contingent payment obligations following the date hereof in the aggregate in any calendar year; excess of one hundred thousand dollars ($100,000) or (C) that gives any Person the saleright to acquire any assets of the Company or the Company Subsidiaries (excluding ordinary course commitments to purchase homes, lease or other disposition by or to the Business of lots, goods, supplies, products and/or other Assets in an amount or having services) after the date hereof with a value in excess total consideration of more than fifty thousand dollars ($250,000 in the aggregate in any calendar year50,000);
(vi) any Contract that is an indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other Contract providing for or securing indebtedness for borrowed money or deferred payment (in each Seller Contract imposing case, whether incurred, assumed, guaranteed or secured by any materialasset) in an outstanding principal amount in excess of one million dollars ($1,000,000), explicit restriction on the right or ability of other than (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere surety bonds issued in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact ordinary course of business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own any such contract between the Company or any Company Subsidiary, on the one hand, and operate any other Company Subsidiary, on the 787 Program as currently conductedother hand;
(vii) each Purchased any executory Contract under which Seller for the sale of any land parcels (Awhether or not developed) leases of the Company or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration a Company Subsidiary with a purchase price in excess of five hundred thousand dollars ($100,000 per annum500,000) (other than individual home sales in the ordinary course of business);
(viii) each Purchased any executory Contract with providing for any fee building arrangements to which the Company or a Company Subsidiary is a party;
(ix) any (A) any Affiliate of Seller Contracts with respect to preferred lender arrangements to which the Company or a Company Subsidiary is a party or (B) any Contracts with mortgage providers to which the Company or a Company Subsidiary is a party; and
(x) any Contract (A) pursuant to which the Company or any Company Subsidiary receives a license to use any material Intellectual Property (other than any employee of Sellerlicenses for “off-the-shelf” or other Software widely available on generally standard terms and conditions) or (B) any of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing);
(x) any Contract, the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which the Company or any Company Subsidiary grants to a third party owes an obligation a license to use any material Company Intellectual Property. Each Contract of confidentiality the type described in this Section 4.13(a) is referred to Seller herein as a “Company Material Contract.” True and complete copies of each Company Material Contract in relation 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 Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii)SEC.
(b) Except as set forth on Schedule 4.11(b) would not have and other than with respect would not reasonably be expected to have, individually or in the 787 Supply Agreement: aggregate, a Company Material Adverse Effect, (i) each Company Material Contract is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller and, to Seller’s Knowledge, of the other Company or the Company Subsidiary party or parties thereto and is enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization full force and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
effect (cexcept as may be limited by the Enforceability Exceptions) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) none of the Company, any Company Subsidiary or, to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default underthe Company, any Material Contract (counterparty is in each case, with breach or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Company Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 1 contract
Sources: Merger Agreement (New Home Co Inc.)
Contracts. (a) For purposes Section 2.15 of the Disclosure Schedule lists the following agreements (written or oral) to which the Company is a party as of the date of this Agreement, each of the following shall constitute a “Material Contract”:
(i) each Purchased Contract relating any agreement (or group of related agreements) for the lease of personal property from or to the employment (whether on a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000third parties;
(ii) except any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, (B) which involves more than the sum of $50,000, or (C) in which the Company has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to the extent included elsewhere in this Section 4.11(a)any products, each Purchased Contract relating in services or territory or has agreed to purchase a material manner minimum quantity of goods or primarily services or has agreed to the acquisition, use, transfer, development, ownership, sharing purchase goods or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)services exclusively from a certain party;
(iii) each Purchased Contract creating any agreement concerning the establishment or relating to any operation of a partnership, limited liability company or joint venture or similar venture or arrangementlimited liability company;
(iv) each Purchased Contract with any customer agreement (or production supplier that involvesgroup of related agreements) under which it has created, incurred, assumed or guaranteed indebtedness (including capitalized lease obligations) or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement for the disposition of any significant portion of the assets or business of the Company (other than sales of products in the Ordinary Course of Business) or any agreement for the acquisition of the assets or business of any other entity (other than purchases of inventory or components in the Ordinary Course of Business);
(vi) any agreement concerning confidentiality, other than non-disclosure agreements pursuant to which confidentiality is the Company’s principal obligation thereunder;
(vii) any employment agreement or consulting agreement, other than confidentiality and assignment of inventions agreements;
(viii) any agreement involving any current or former officer, director or stockholder of the Company or an Affiliate thereof, other than restrictive covenants agreements, option agreements or restricted stock agreements in the Company’s standard forms, copies of which have been provided to the Buyer;
(ix) any agreement under which the consequences of a default or termination would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of have a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing)Company Material Adverse Effect;
(x) any Contractagreement which contains any provisions requiring the Company to indemnify any other party (excluding indemnities contained in agreements for the purchase, sale or license of products entered into in the primary subject matter Ordinary Course of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business);
(xi) each Purchased Contract any agreement that would reasonably be expected to have the effect of prohibiting or impairing the conduct of the business of the Company as currently conducted and as currently proposed to be conducted by the Company (within 12 months after the Closing, as if the Merger had not occurred);
(xii) any agreement under which createsthe Company is restricted from selling, licensing or otherwise distributing any of its technology or products, or may createproviding services to, an Encumbrance on customers or potential customers or any Purchased Asset class of customers, in an amount any geographic area, during any period of time or with any segment of the market or line of business, or otherwise providing for any “exclusivity” requirement;
(xiii) any agreement under which the Company guarantees or warranties a value minimum level of performance or a minimum service level, or under which a penalty applies in excess the event that a performance target or service level is not satisfied;
(xiv) any agreement which would entitle any third party to receive a license or any other right to intellectual property of $50,000the Buyer or any of the Buyer’s Affiliates (other than the Company) following the Closing; and
(xiixv) each Purchased Contract set forth on Schedule 4.11(a)(xii)any other agreement (or group of related agreements) involving more than $50,000.
(b) Except as set forth on Schedule 4.11(b) The Company has delivered to the Buyer a complete and other than with accurate copy of each agreement listed in Section 2.13 or Section 2.15 of the Disclosure Schedule. With respect to the 787 Supply Agreementeach agreement so listed: (i) each Material Contract subject to the Bankruptcy and Equity Exception, the agreement is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller andand in full force and effect; (ii) subject to the Bankruptcy and Equity Exception, to Seller’s Knowledgethe agreement will be legal, of valid, binding and enforceable and in full force and effect immediately following the other party or parties thereto and is enforceable Closing in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except the terms thereof as set forth on Schedule 4.11(c) and other than with respect in effect immediately prior to the 787 Supply Agreement: Closing; and (iiii) Seller has not violated neither the Company nor, to the Knowledge of the Company, any other party, is in breach or breached in any material respect violation of, or committed any material default under, any Material Contract (in each casesuch agreement, with or without notice or lapse of time or both)and no event has occurred, nor is it in receipt of any written Claim of such default or breach; and (ii) pending or, to the Knowledge of Sellerthe Company, no other Person has violated or breached in any material respectis threatened, which, after the giving of notice, with lapse of time, or committed any material otherwise, would constitute a breach or default underby the Company, to the Knowledge of the Company, any Material Contract (in each case, with or without notice or lapse of time or both)other party under such agreement.
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 1 contract
Sources: Merger Agreement (TechTarget Inc)
Contracts. Schedule 4.13 (or other Schedules that refer to particular subsections of this Section 4.13) contains a complete and accurate list of the following types and forms of contracts and other agreements to which any of ▇▇▇▇▇ Parties is a party or by which any of its assets or properties are bound:
(a) For purposes any agreement (or group of this Agreementrelated agreements), each written or oral, for the lease of personal property to or from any Person providing for lease payments in excess of $25,000 per annum or which may not be terminated by the relevant ▇▇▇▇▇ Party (or, following the Closing, ▇▇▇▇▇▇▇▇) without penalty or payment on 30 days, or less, notice;
(b) any agreement (or group of related agreements) for the purchase or sale of real property, improvements, raw materials, commodities, equipment, supplies, products, or other real or personal property, or for the furnishing or receipt of services, the performance of which shall constitute a “Material Contract”:
(i) each Purchased Contract relating to the employment (whether on extend over a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary period of more than one year, (ii) result in a material loss to any ▇▇▇▇▇ Party (or, following the Closing, ▇▇▇▇▇▇▇▇), or (iii) involve consideration in excess of $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000250,000;
(iic) except to the extent included elsewhere in this Section 4.11(a)any agreement concerning a partnership or limited partnership, each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements);
(iii) each Purchased Contract creating or relating to any partnershipjoint venture, limited liability company or joint venture limited liability partnership, including any agreement with or similar venture involving such an organization which provides for a sharing of profits, losses, costs or arrangementliabilities of the ▇▇▇▇▇ Parties (or any of them) or such organization with any other Person;
(ivd) each Purchased Contract any agreement granting a power of attorney to any Person;
(e) any contract, arrangement or commitment with a labor union or association or other employee group;
(f) any customer easements, right-of-way agreements or production supplier that involvesother similar agreements or rights;
(g) any agreements, commitments or pledges for civic or charitable donations;
(h) any agreement involving a warranty, guaranty or other similar understanding with respect to contractual performance extended by any ▇▇▇▇▇ Party;
(i) any agreement (or group of related agreements) under which any ▇▇▇▇▇ Party has created, incurred, assumed or guaranteed any indebtedness for borrowed money, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year)any capitalized lease obligation, the payment or expenditure in excess of $2,000,00025,000 or under which it has imposed an Encumbrance on any of its assets or properties, tangible or intangible;
(vj) each Purchased Contract not any agreement containing covenants by any ▇▇▇▇▇ Party not-to- compete in any line of business with any Person, or restricting the customers from whom, or production suppliers that the area in which, any ▇▇▇▇▇ Party may not be terminated solicit or conduct business, or any contract, arrangement or commitment involving a covenant of confidentiality;
(without penaltyk) by Seller within thirty any agreement under which it has advanced, lent or borrowed any amount of money or property to or from any of its directors, officers, shareholders or employees (30other than advances to employees for expenses in the Ordinary Course of Business);
(l) days after any agreement under which the delivery consequences of a default or termination notice by Seller and contemplating could have a material adverse effect on the business, financial condition, results of operations, assets or involving, or reasonably anticipated to involve, properties of any ▇▇▇▇▇ Party;
(Am) any agreement not made in the payment or delivery by or to the Ordinary Course of Business of cash any ▇▇▇▇▇ Party; or
(n) any other agreement (or other consideration in an amount or having a value in excess group of $250,000 in the aggregate in any calendar year; (Brelated agreements) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other involves consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) 50,000 or (B) any of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing);
(x) any Contract, the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with has a value term in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii).
(b) Except as set forth on Schedule 4.11(b) and other than with respect one year. ▇▇▇▇▇ has delivered to the 787 Supply Agreement: (i) each Material Contract is in full force and effect and (ii) each Material Contract constitutes ▇▇▇▇▇▇▇▇ a legal, valid, binding and enforceable obligation of Seller and, to Seller’s Knowledge, of the other party or parties thereto and is enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such WIP Contract, of each Other Work-in-Process Contract, of each Other Agreement, of the Orion Contract, the Plate Roll Contract and the Corrosion Specialties Contract, and of each other written Material Contract (including all amendments thereto) has been made available agreement listed in Schedule 4.13, and a written summary setting forth the terms and conditions of each oral agreement referred to Buyerin Schedule 4.13.
Appears in 1 contract
Contracts. Schedule 4.16 sets forth all contracts (except for purchase orders executed in the normal course of business), agreements, leases, permits or licenses, to which, as of the date hereof, the Company or any of its Subsidiaries is a party or is otherwise bound, of the type described below, other than the Leases set forth on Schedule 4.19 (the “Contracts”):
(a) For purposes all agreements or commitments (x) for the purchase by the Company or any of this Agreement, each its Subsidiaries of the following shall constitute a “Material Contract”:
(i) each Purchased Contract relating to the employment (whether on a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000;
(ii) except to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements);
(iii) each Purchased Contract creating or relating to any partnership, limited liability company or joint venture or similar venture or arrangement;
(iv) each Purchased Contract with any customer or production supplier that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration rental fleet equipment in an amount or having a value in excess of $250,000 per year per agreement or (y) that require the Company or any of its Subsidiaries to purchase all or any part of its rental fleet equipment from any one or more suppliers;
(b) all employment agreements and all consulting or severance agreements, in the each case that involve an aggregate in any calendar year; (B) the performance by future or for the Business of services in an amount or having a value potential liability in excess of $250,000 in per agreement;
(c) all material agreements relating to the aggregate licensing of Intellectual Property Rights by the Company or any of its Subsidiaries to a third party or by a third party to the Company or any of its Subsidiaries;
(d) all agreements limiting the freedom of the Company or any of its Subsidiaries (or, after giving effect to the Merger, Parent and its Subsidiaries) to compete in any calendar year; business or within any geographic area or with any Person;
(Ce) the saleall mortgages, lease indentures, notes, bonds, credit agreements, loan agreements, security agreements, guarantees or other disposition agreements relating to indebtedness incurred or provided by the Company or to the Business any of goodsits Subsidiaries (including capital leases and any caps, suppliesswaps, products and/or other Assets collars or similar derivative transactions) in an aggregate amount or having a value in excess of $250,000 or more (with the amount of indebtedness in respect of any derivative transaction being the amount of net payments that the Company or any of its Subsidiaries have to make in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction event of an early termination on the right or ability date indebtedness of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other such Person involving lease payments or other consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viiiis being determined);
(ixf) each noteall material partnership agreements, debenture, bond, indenture, guarantee, loan, credit joint venture agreements or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on similar agreements relating to the Purchased Assets, Company and each Purchased Contract for borrowed money (including for future loans, credit or financing)its Subsidiaries;
(xg) all contracts or agreements with customers that provide for receipt by the Company or any Contract, the primary subject matter of which is confidentiality, nondisclosure its Subsidiaries of more than $250,000 per year per contract or agreement;
(h) all contracts or agreements containing any standstill or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation a Person has agreed not to acquire assets or securities of confidentiality to Seller in relation to the Businessanother Person;
(xii) each Purchased Contract which createsall contracts or agreements entered into since January 1, 2014 that relate to the acquisition or may createdisposition of any business, an Encumbrance on a material amount of stock or assets of any Purchased Asset in an amount other Person or with a value in excess any real property (whether by merger, sale of $50,000stock, sale of assets or otherwise); and
(xiij) each Purchased any commitment to do any of the foregoing described in clauses (a) through (i). Each Contract set forth on Schedule 4.11(a)(xii4.16 (other than agreements that have not yet been accepted by the other party thereto) is a valid and binding agreement of the Company or any of its Subsidiaries, as the case may be, and to the Company’s Knowledge, each other party thereto, enforceable in accordance with its terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity).
(b) , and is in full force and effect. Except as set forth on Schedule 4.11(b) and other than with respect to 4.16, none of the 787 Supply Agreement: (i) each Material Contract Company or any of its Subsidiaries is in full force and effect and (ii) each Material Contract constitutes a legalmaterial breach or default under any Contract, validhas received any claim of any such material breach or default, binding and enforceable obligation of Seller and, to Seller’s Knowledge, of nor has any event occurred that with the other party or parties thereto and is enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt the giving of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in both would constitute a material violation breach or breach of any provision of any Material Contract default thereunder by Seller; (ii) given any Person the right Company or its Subsidiaries. The Company has made available to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list Merger Sub true and complete copies of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto)Contracts, in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 1 contract
Sources: Merger Agreement (United Rentals North America Inc)
Contracts. (a) For purposes Section 2.13 of the Disclosure Schedule lists the following agreements (written or oral) to which the Company is a party as of the date of this Agreement, each of the following shall constitute a “Material Contract”:
(i) each Purchased Contract relating any agreement (or group of related agreements) for the lease of personal property from or to the employment (whether on third parties providing for lease payments in excess of $50,000 per annum or having a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more remaining term longer than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,00012 months;
(ii) except (ii) any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, (B) which involves more than the sum of $50,000, or (C) in which the Company has granted manufacturing rights, “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in any products or territory or has agreed to purchase a material manner minimum quantity of goods or primarily services or has agreed to the acquisition, use, transfer, development, ownership, sharing purchase goods or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)services exclusively from a certain party;
(iii) each Purchased Contract creating or relating any agreement which, to any partnershipthe knowledge of the Company, limited liability company establishes a partnership or joint venture or similar venture or arrangementventure;
(iv) each Purchased Contract 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) involving more than $50,000 or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement which imposes any current obligation on the Company with respect to confidentiality or noncompetition;
(vi) any customer employment or production supplier that involvesconsulting agreement;
(vii) any agreement involving any officer, director or stockholder of the Company or any affiliate, as defined in Rule 12b-2 under Exchange Act, thereof (an “Affiliate”);
(viii) any agreement under which the consequences of a default or termination would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of have a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii)Company Material Adverse Effect;
(ix) each noteany agreement which contains any provisions requiring the Company to indemnify any other party thereto (excluding indemnities contained in agreements for the purchase, debenture, bond, indenture, guarantee, loan, credit sale or financing agreement, instrument or other evidence of, or Contract for, Indebtedness license of Seller secured by or providing Encumbrances on products entered into in the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financingOrdinary Course of Business);
(x) any Contract, other agreement (or group of related agreements) either involving more than $50,000 or not entered into in the primary subject matter Ordinary Course of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;; and
(xi) each Purchased Contract any agreement, other than as contemplated by this Agreement relating to the sales of securities of the Company to which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with the Company is a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii)party.
(b) Except The Company has delivered or made available to the Parent a complete and accurate copy of each agreement listed in Section 2.13 of the Disclosure Schedule. With respect to each agreement so listed, and except as set forth on Schedule 4.11(b) and other than with respect to in Section 2.13 of the 787 Supply AgreementDisclosure Schedule: (i) each Material Contract the agreement is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller andand in full force and effect; (ii) the agreement will continue to be legal, to Seller’s Knowledgevalid, of binding and enforceable and in full force and effect immediately following the other party or parties thereto and is enforceable Closing in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except the terms thereof as set forth on Schedule 4.11(c) and other than with respect in effect immediately prior to the 787 Supply Agreement: Closing; and (iiii) Seller has the Company is not violated nor, to the knowledge of the Company, is any other party, in breach or breached in any material respect violation of, or committed any material default under, any Material Contract (in each casesuch agreement, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no factis pending or, circumstance or condition existsto the knowledge of the Company, that (is threatened, which, after the giving of notice, with or without notice or lapse of time time, or both) has (i) resulted in otherwise, would constitute a material violation breach or breach default by the Company or, to the knowledge of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respectCompany, any Material Contractother party under such contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 1 contract
Contracts. (a) For purposes Section 2.14 of the Disclosure Schedule lists the following agreements (written or oral) to which the Seller is a party as of the date of this Agreement, each of the following shall constitute a “Material Contract”:
(i) each Purchased Contract relating any agreement (or group of related agreements) for the lease of personal property from or to the employment (whether on third parties providing for lease payments in excess of $10,000.00 per annum or having a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more remaining term longer than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000three months;
(ii) except any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, (B) which involves more than the sum of $10,000.00, or (C) in which the Seller has granted manufacturing rights, “most favored nation” pricing provisions or marketing or distribution rights relating to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in any products or territory or has agreed to purchase a material manner minimum quantity of goods or primarily services or has agreed to the acquisition, use, transfer, development, ownership, sharing purchase goods or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)services exclusively from a certain party;
(iii) each Purchased Contract creating any agreement concerning the establishment or relating to any operation of a partnership, limited liability company or joint venture or similar venture or arrangementlimited liability company;
(iv) each Purchased Contract with any customer agreement (or production supplier that involvesgroup of related agreements) under which it has created, incurred, assumed or would reasonably be expected to involve guaranteed (assuming delivery or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $10,000 or under which it has imposed (or may impose) a Security Interest on any of eighty-four (84) shipsets per year)its assets, the payment tangible or expenditure in excess of $2,000,000intangible;
(v) each Purchased Contract not with customers any agreement for the disposition of any significant portion of the assets or production suppliers that may not be terminated business of the Seller (without penalty) by Seller within thirty (30) days after the delivery other than sales of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 products in the aggregate in Ordinary Course of Business) or any calendar year; (B) the performance by or agreement for the Business acquisition of services in an amount the assets or having a value in excess business of $250,000 any other entity (other than purchases of inventory or components in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business Ordinary Course of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar yearBusiness);
(vi) each Seller Contract imposing any material, explicit restriction on the right agreement concerning exclusivity or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conductedconfidentiality;
(vii) each Purchased Contract under which Seller (A) leases any employment or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annumconsulting agreement;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than agreement involving any employee of Seller) current or (B) any former officer, manager or member of the Persons identified on Schedule 4.11(a)(viii)Seller;
(ix) each noteany agreement which contains any provisions requiring the Seller to indemnify any other party (excluding indemnities contained in agreements for the purchase, debenture, bond, indenture, guarantee, loan, credit sale or financing agreement, instrument or other evidence of, or Contract for, Indebtedness license of Seller secured by or providing Encumbrances on products entered into in the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financingOrdinary Course of Business);
(x) any Contractagreement under which the Seller is restricted from selling, licensing or otherwise distributing any of its technology or products, or providing services to, customers or potential customers or any class of customers, in any geographic area, during any period of time or any segment of the primary subject matter market or line of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Businessbusiness;
(xi) each Purchased Contract any agreement which creates, would entitle any third party to receive a license or may create, an Encumbrance on any Purchased Asset in an amount other right to intellectual property of the Buyer or with a value in excess any of $50,000the Buyer’s Affiliates following the Closing; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii)any other agreement (or group of related agreements) either involving more than $10,000.00 or not entered into in the Ordinary Course of Business.
(b) The Seller has delivered to the Buyer a complete and accurate copy of each agreement listed in Section 2.13 or Section 2.14 of the Disclosure Schedule. Except as set forth on Schedule 4.11(b) and other than otherwise provided in this Agreement, with respect to the 787 Supply Agreementeach agreement so listed: (i) each Material Contract the agreement is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller and, to Seller’s Knowledge, of the other party or parties thereto and is enforceable in accordance with its terms, full force and effect subject only to applicable bankruptcy, insolvency, reorganization reorganization, moratorium and moratorium Laws and other Laws of general application similar laws affecting enforcement of creditors’ rights and remedies generally.
, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has not violated regardless of whether enforcement is sought in a proceeding at law or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or bothequity), nor is it in receipt of any written Claim of such default or breach; and (ii) neither the Seller nor, to the Knowledge of the Seller, no any other Person has violated party, is in breach or breached in any material respectviolation of, or committed any material default under, any Material Contract (in each casesuch agreement, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, and no event or development has occurred, and no factis pending or, circumstance or condition existsto the Knowledge of the Seller, that (is threatened, which, after the giving of notice, with or without notice or lapse of time time, or both) has (i) resulted in otherwise, would constitute a material violation breach or breach default by the Seller or, to the Knowledge of any provision of any Material Contract by the Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contractother party under such agreement.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 1 contract
Sources: Asset Purchase Agreement (World Energy Solutions, Inc.)
Contracts. (a) For purposes Section 2.15 of the Disclosure Schedule lists the following agreements (written or oral) to which the Company is a party as of the date of this Agreement, each except to the extent the Company has no continuing or contingent rights or obligations under any such agreement as the result of the following shall constitute a “Material Contract”termination or expiration of such agreement:
(i) each Purchased Contract relating any agreement (or group of related agreements) for the lease of personal property from or to the employment (whether on third parties providing for lease payments in excess of $10,000 per annum or having a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more remaining term longer than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,00012 months;
(ii) except any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) that calls for performance over a period of more than one year, (B) that involves more than the sum of $50,000, or (C) in which the Company has granted manufacturing rights, "most favored nation" pricing provisions or marketing or distribution rights relating to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in any Customer Deliverables or territory or has agreed to purchase a material manner minimum quantity of goods or primarily services or has agreed to the acquisition, use, transfer, development, ownership, sharing purchase goods or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)services exclusively from a certain Person;
(iii) each Purchased Contract creating any agreement concerning the establishment or relating to any operation of a partnership, limited liability company or joint venture or similar venture or arrangementlimited liability company, except for any such agreement with the Buyer;
(iv) each Purchased Contract with any customer agreement (or production supplier that involvesgroup of related agreements) under which it has created, incurred, assumed or would reasonably be expected to involve guaranteed (assuming delivery or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $25,000 or under which it has imposed (or may impose) a Security Interest on any of eighty-four (84) shipsets per year)its assets, the payment tangible or expenditure in excess of $2,000,000intangible;
(v) each Purchased Contract not with customers any agreement for the disposition of any significant portion of the assets or production suppliers that may not be terminated business of the Company (without penalty) by Seller within thirty (30) days after the delivery other than sales of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 Customer Deliverables in the aggregate in Ordinary Course of Business) or any calendar year; (B) the performance by or agreement for the Business acquisition of services in an amount the assets or having a value in excess business of $250,000 any other entity (other than purchases of inventory or components in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business Ordinary Course of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar yearBusiness);
(vi) each Seller Contract imposing any material, explicit restriction on the right agreement concerning confidentiality or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conductednoncompetition;
(vii) each Purchased Contract under which Seller (A) leases any employment or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annumconsulting agreement;
(viii) each Purchased Contract with any agreement involving (A) the Primary Shareholder or any Affiliate of Seller (other than any employee of Seller) the Primary Shareholder or (B) any current or former officer, director or shareholder of the Persons identified on Schedule 4.11(a)(viii)Company or an Affiliate thereof;
(ix) each noteany agreement that contains any provisions requiring the Company to indemnify any other Person (excluding indemnities contained in agreements for the purchase, debenture, bond, indenture, guarantee, loan, credit sale or financing agreement, instrument or other evidence of, or Contract for, Indebtedness license of Seller secured by or providing Encumbrances on products entered into in the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financingOrdinary Course of Business);; and
(x) any Contract, other agreement (or group of related agreements) either involving more than $50,000 or not entered into in the primary subject matter Ordinary Course of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii).
(b) Except as set forth on Schedule 4.11(b) The Company has delivered to the Buyer a complete and other than with accurate copy of each agreement listed in Section 2.13 or 2.15 of the Disclosure Schedule. With respect to the 787 Supply Agreementeach agreement so listed: (i) each Material Contract the agreement is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller andand in full force and effect; (ii) the agreement will continue to be legal, to Seller’s Knowledgevalid, of binding and enforceable and in full force and effect immediately following the other party or parties thereto and is enforceable Closing in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except the terms thereof as set forth on Schedule 4.11(c) and other than with respect in effect immediately prior to the 787 Supply Agreement: Closing; and (iiii) Seller has not violated neither the Company nor, to the knowledge of the Company, any other Person, is in breach or breached in any material respect violation of, or committed any material default under, any Material Contract (in each casesuch agreement, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no factis pending or, circumstance or condition existsto the knowledge of the Company, that (is threatened, that, after the giving of notice, with or without notice or lapse of time time, or both) has (i) resulted in otherwise, would constitute a material violation breach or breach default by the Company or, to the knowledge of any provision of any Material Contract by Seller; (ii) given the Company, any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contractsuch agreement.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 1 contract
Contracts. (a) For purposes To the Knowledge of this AgreementSeller and except as otherwise disclosed in Schedule 4.6 or as entered into after the date hereof in accordance with the provisions of Section 6.1, each of there are no outstanding commitments, contracts and agreements (other than agreements relating to Real Property Agreements) to which the following shall constitute a “Material Contract”:
Companies are parties or by which they are bound that: (i) each Purchased Contract relating to involve commitments by the employment Companies for terms of twelve (whether on a full-time, part-time, consulting 12) months or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary longer that involve annualized payments of more than Two Hundred Fifty Thousand Dollars ($60,000 or for which the cost of such severance250,000), termination or relocation payment would exceed $30,000;
(ii) except to involve payment of more than Five Hundred Thousand Dollars ($500,000) in the extent included elsewhere aggregate (and in this Section 4.11(athe case of the foregoing clauses (i) and (ii), each Purchased Contract relating in a material manner or primarily to the acquisitionare not terminable by their terms, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements);
(iii) each Purchased Contract creating or relating to any partnership, limited liability company or joint venture or similar venture or arrangement;
(iv) each Purchased Contract with any customer or production supplier that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within , on thirty (30) days after or less notice), (iii) contain a covenant not to compete restricting the delivery Companies from competing or engaging in any line of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, business; (iv) under which the Companies have (A) the payment created, incurred, assumed or delivery by guaranteed (or may create, incur, assume or guarantee) any Indebtedness, (B) granted a Lien (other than a Permitted Lien) on their assets, whether tangible or intangible, to the Business of cash secure such Indebtedness, or other consideration agreed to any restriction or limitation on distributions, dividends or return on equity, or extended credit to any Person in an amount amount, individually or having a value in the aggregate, in excess of Two Hundred Fifty Thousand Dollars ($250,000 250,000) of committed credit (excluding trade receivables in the aggregate in any calendar year; (Bordinary course of business) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) any indemnity, any guaranty of performance or any agreement to provide credit support or otherwise make capital contributions, loans or advances; (v) any current contract to which either Company is a party for the salepurchase or sale of any business, lease corporation, partnership, joint venture or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
business organization; (vi) each Seller Contract imposing any materialinvolve ▇▇▇▇▇▇, explicit restriction on the right swaps, fixed priced commitments or ability other derivatives that would be an obligation of (A) the Business to (1) compete with, or solicit the services or employment of, any other Personeither Company after Closing; (2vii) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Personare Real Property Agreements; or (4viii) developany amendment, usesupplement, sellrestatement, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) modification relating to any of the Persons foregoing. Contracts identified on in Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on 4.6 are hereafter referred to as the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing);
(x) any Contract, the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii)“Disclosed Contracts”.
(b) Except To the Knowledge of Seller, except as set forth on described in Schedule 4.11(b) and other than with respect to the 787 Supply Agreement: (i) 4.6, each Material Disclosed Contract is valid and in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller and, to Seller’s Knowledge, of the other party or parties thereto and is enforceable in accordance with against the subject Company according to its terms, subject only neither the Companies nor any other Person is in default or breach under any such Disclosed Contract, and there are no claims or basis for any claims affecting the same of which Seller has Knowledge, except where such failure to applicable bankruptcybe valid, insolvencyin full force and effect, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generallyor enforceable or such default, breach or claim would not, individually or in the aggregate, have a Material Adverse Effect on the Companies taken as a whole.
(c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to To the Knowledge of Seller, no neither of the Companies has, other Person has violated or breached than in any material respecta manner consistent with normal billing cycles, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted received any quantity of natural gas under any Disclosed Contract for which payment will be due in a material violation the future, or breach of any provision of any Material Contract by Seller; (ii) given received any Person prepayment or advance payment that will obligate either Company to perform services or provide natural gas or other products after the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person Closing Date without receiving payment therefor, except in the unilateral right to accelerate the maturity ordinary course of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contractbusiness consistent with past practice.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 1 contract
Contracts. (a) For purposes Section 3.11(a) of the Baxano Disclosure Schedule lists the following agreements (written or oral) to which Baxano is a party as of the date of this Agreement, each of the following shall constitute a “Material Contract”:
(i) each Purchased Contract any Baxano Lease and any agreement (or group of related agreements) for the lease of personal property from or to third parties providing for lease payments in excess of $50,000 per annum or having a remaining term longer than six months;
(ii) any agreement (or group of related agreements) that is not terminable without cause by Baxano with less than 31 (thirty-one) days’ notice without penalty, including the payment of any termination fee or refund of amounts previously received, and that is for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, (B) which would require an aggregate of more than $50,000 in payments following the Closing or (C) in which Baxano has granted manufacturing rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any products or territory or has agreed to purchase a minimum quantity of goods or services or has agreed to purchase goods or services exclusively from a particular party;
(iii) any agreement concerning the employment establishment or operation of a partnership, joint venture or limited liability company;
(whether iv) 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 Lien on a full-timeany of its assets, part-time, consulting tangible or other basisintangible;
(v) any agreement for the disposition of any Employee significant portion of the assets or business of Baxano (other than sales of products in the Ordinary Course of Business) or any agreement for the acquisition of the assets or business of any other entity (other than purchases of inventory or components in the Ordinary Course of Business);
(vi) any employment agreement that is not terminable at will or that varies in any material respect from the template form of such agreement previously made available to TranS1, and any “stay pay,” termination, change consulting agreement or sales representative agreement that varies in any material respect from the template form of control or other Contract pursuant such agreement previously made available to TranS1;
(vii) any agreement under which Seller is or may become obligated to make any severance, termination or relocation payment Baxano has continuing obligations to any current or former Employee officer, director or stockholder of the Business who earns Baxano or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000;
(ii) except to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements);
(iii) each Purchased Contract creating or relating to any partnership, limited liability company or joint venture or similar venture or arrangement;
(iv) each Purchased Contract with any customer or production supplier that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annumAffiliate thereof;
(viii) each Purchased Contract with any agreement which contains any provisions requiring Baxano to indemnify any other party for infringement claims (A) any Affiliate excluding indemnities contained in agreements for the purchase, sale or license of Seller (other than any employee products entered into in the Ordinary Course of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viiiBusiness);
(ix) each noteany agreement under which Baxano is restricted from selling, debenture, bond, indenture, guarantee, loan, credit licensing or financing agreement, instrument otherwise distributing any of its technology or other evidence ofproducts, or Contract forproviding services to, Indebtedness customers or potential customers or any class of Seller secured by customers, in any geographic area, during any period of time or providing Encumbrances on any segment of the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit market or financing)line of business;
(x) any Contract, the primary subject matter of agreement under which is confidentiality, nondisclosure Baxano has licensed any material Intellectual Property to or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which from any third party owes an obligation of confidentiality (excluding currently-available, off-the-shelf software programs that are licensed by Baxano pursuant to Seller in relation to the Business“shrink wrap” licenses);
(xi) each Purchased Contract which creates, any agreement that would entitle any third party to receive a license or may create, an Encumbrance on any Purchased Asset in an amount other right to intellectual property of TranS1 or with a value in excess any of $50,000TranS1’s Affiliates following the Closing; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii)any other agreement (or group of related agreements) (A) involving more than $100,000 or (B) not entered into in the Ordinary Course of Business.
(b) Except as set forth on Schedule 4.11(bBaxano has provided or made available to TranS1 a complete and accurate copy of each agreement listed in Section 3.11(a) and other than with of the Baxano Disclosure Schedule. With respect to each agreement so listed, except as disclosed in Section 3.11(b) of the 787 Supply AgreementBaxano Disclosure Schedule: (i) each Material Contract the agreement is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller andand in full force and effect; (ii) the agreement will continue to be legal, to Seller’s Knowledgevalid, of binding and enforceable and in full force and effect immediately following the other party or parties thereto and is enforceable Closing in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except the terms thereof as set forth on Schedule 4.11(c) and other than with respect in effect immediately prior to the 787 Supply Agreement: Closing; and (iiii) Seller has not violated neither Baxano nor, to the knowledge of Baxano, any other party, is in breach or breached in any material respect violation of, or committed any material default under, any Material Contract (in each casesuch agreement, and no event has occurred, is pending or, to the knowledge of Baxano, is threatened, which, with or without notice or lapse of time time, or both), nor is it in receipt of any written Claim of such would constitute a breach, violation or default or breach; and (ii) by Baxano or, to the Knowledge knowledge of SellerBaxano, any other party under such agreement. Baxano has not received any notice in writing from any other party, and, to the knowledge of Baxano, no other Person party has violated or breached in any material respectthreatened, or committed any material default underto terminate, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate fail to renew or modifyotherwise materially modify any such agreements the loss of which, individually or in any material respectthe aggregate, any would reasonably be expected to have a Baxano Material ContractAdverse Effect.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 1 contract
Sources: Merger Agreement (Trans1 Inc)
Contracts. The Parent has disclosed and made available to the Company for review in the Due Diligence Review, Parent Reports or otherwise the following material agreements (written or oral) to which the Company or any Subsidiary is a party as of the date of this Agreement:
(a) For purposes any agreement (or group of this Agreement, each related agreements) for the lease of the following shall constitute a “Material Contract”:personal property from or to third parties;
(ib) each Purchased Contract relating to any agreement (or group of related agreements) for the employment purchase or sale of products or for the furnishing or receipt of services (whether on A) which calls for performance over a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary period of more than one year, (B) which involves more than the sum of $60,000 5,000, or for (C) in which the cost Parent or any Subsidiary has granted manufacturing rights, “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any products or territory or has agreed to purchase a minimum quantity of such severance, termination goods or relocation payment would exceed $30,000services or has agreed to purchase goods or services exclusively from a certain party;
(iic) except to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in any agreement establishing a material manner partnership or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)joint venture;
(iiid) each Purchased Contract creating any agreement (or relating to 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) involving more than $5,000 or under which it has imposed (or may impose) a Security Interest on any partnershipof its assets, limited liability company tangible or joint venture or similar venture or arrangementintangible;
(ive) each Purchased Contract with any customer agreement concerning confidentiality or production supplier that involvesnoncompetition;
(f) any employment or consulting agreement;
(g) any agreement involving any officer, director or stockholder of the Parent or any Affiliate thereof;
(h) any agreement under which the consequences of a default or termination would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000have a Parent Material Adverse Effect;
(vi) each Purchased Contract not with customers any agreement which contains any provisions requiring the Parent or production suppliers that may not be terminated any Subsidiary to indemnify any other party thereto (without penalty) by Seller within thirty (30) days after excluding indemnities contained in agreements for the delivery purchase, sale or license of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 products entered into in the aggregate in any calendar year; (B) the performance by or for the Business Ordinary Course of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreementsBusiness); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing);
(x) any Contract, the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xiij) any other agreement (or group of related agreements) either involving more than $5,000 or not entered into in the Ordinary Course of Business. The Parent has disclosed and made available to the Company for review in the Due Diligence Review, Parent Reports or otherwise a complete and accurate copy of each Purchased Contract set forth on Schedule 4.11(a)(xii).
(b) Except as set forth on Schedule 4.11(b) and other than with agreement described herein. With respect to the 787 Supply Agreementeach agreement so listed: (i) each Material Contract the agreement is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller andand in full force and effect; (ii) the agreement will continue to be legal, to Seller’s Knowledgevalid, of binding and enforceable and in full force and effect immediately following the other party or parties thereto and is enforceable Closing in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except the terms thereof as set forth on Schedule 4.11(c) and other than with respect in effect immediately prior to the 787 Supply Agreement: Closing; and (iiii) Seller has not violated neither the Parent nor any Subsidiary nor, to the knowledge of the Parent, any other party, is in breach or breached in any material respect violation of, or committed any material default under, any Material Contract (in each casesuch agreement, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no factis pending or, circumstance or condition existsto the knowledge of the Parent, that (is threatened, which, after the giving of notice, with or without notice or lapse of time time, or both) has (i) resulted in otherwise, would constitute a material violation breach or breach default by the Parent or any Subsidiary or, to the knowledge of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respectParent, any Material Contractother party under such contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 1 contract
Sources: Merger Agreement (Tactical Air Defense Services, Inc.)
Contracts. (a) For purposes of this Agreement, each Section 3.15(a) of the Disclosure Schedule lists the following shall constitute a “Material Contract”:
agreements (i) each Purchased Contract relating to the employment written or oral (whether on a full-time, part-time, consulting or other basisprovided that Section 3.15(a) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000;
(ii) except to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements);
(iii) each Purchased Contract creating or relating to any partnership, limited liability company or joint venture or similar venture or arrangement;
(iv) each Purchased Contract with any customer or production supplier that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Disclosure Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing);
(x) any Contract, the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xii) each Purchased Contract set sets forth on Schedule 4.11(a)(xii).
(b) Except as set forth on Schedule 4.11(b) and other than with respect to the 787 Supply Agreement: (i) each Material Contract is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller and, to Seller’s Knowledge, of the other party or parties thereto and is enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms and provisions of any such oral or unwritten Contract constituting agreement)) to which the Company is a Material Contract (including any oral or unwritten amendments thereto), in each case party as of the date of this Agreement. A true:
(i) any Customer Contracts;
(ii) any agreement (or group of related agreements) for the lease of personal property from or to third parties providing for lease payments in excess of $5,000 per annum or having a remaining term longer than 12 months;
(iii) any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, correct (B) which involves more than the sum of $5,000, or (C) in which the Company has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any products or territory or have agreed to purchase a minimum quantity of goods or services (including airspace) or have agreed to purchase goods or services (including airspace) exclusively from a certain party;
(iv) any agreement concerning the establishment or operation of a partnership, joint venture or limited liability company;
(v) any agreement with Oceanside or any equityholder or other Affiliates thereof;
(vi) 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 (including capitalized lease obligations) or under which the Company has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(vii) any agreement for the disposition of any significant portion of the assets or business of the Company (other than sales of products in the Ordinary Course of Business) or any agreement for the acquisition of the assets or business of any other entity (other than purchases of inventory or components in the Ordinary Course of Business);
(viii) any agreement concerning exclusivity, confidentiality, noncompetition or non-solicitation;
(ix) any employment or consulting agreement;
(x) any severance (or agreement that includes provisions for the payment of severance), “stay pay,” retention, termination or similar agreement with any officer or other employee;
(xi) any settlement agreement or settlement-related agreement (including any agreement in connection with which any employment-related claim is settled);
(xii) any agreement involving any current or former officer, director, stockholder, manager or member of the Company or an Affiliate thereof;
(xiii) any agreement under which the consequences of a default or termination would reasonably be expected to have a Company Material Adverse Effect;
(xiv) any agreement which contains any provisions requiring the Company to indemnify any other party (excluding indemnities contained in agreements for the purchase, sale or license of products entered into in the Ordinary Course of Business);
(xv) any agreement that could reasonably be expected to have the effect of prohibiting or impairing the conduct of the business of the Company, the Buyer or any subsidiary of the Buyer as currently conducted and as currently proposed to be conducted;
(xvi) any agreement under which the Company is restricted from selling its products or providing services to customers, potential customers or any class of customers, in any geographic area, during any period of time or any segment of the market or line of business;
(xvii) any agreement for the acquisition by the Company of any operating business or the capital stock of any other person;
(xviii) any agreement (i) for Indebtedness of the Company or (ii) pursuant to which there are liens or Security Interests on or affecting any of the Company’s property or assets, in each case, including any such agreement to which the Company is a party or bound prior to the consummation of the transactions contemplated by this Agreement; and
(xix) any other agreement (or group of related agreements) either involving more than $25,000 or not entered into in the Ordinary Course of Business.
(b) The Company has delivered to the Buyer a complete and accurate copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.agreement listed in Section 3.12, Section 3.13
Appears in 1 contract
Sources: Stock Purchase Agreement (Casella Waste Systems Inc)
Contracts. (a) For purposes Section 2.14 of the Disclosure Schedule lists the following agreements (written or oral) to which the Company is a party as of the date of this Agreement, each of the following shall constitute a “Material Contract”:
(i) each Purchased Contract relating any agreement (or group of related agreements) for the lease of personal property from or to the employment (whether on third parties providing for lease payments in excess of $50,000 per annum or having a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more remaining term longer than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,00012 months;
(ii) except any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, (B) which involves more than the sum of $50,000, or (C) in which the Company has granted manufacturing rights, "most favored nation" pricing provisions or exclusive marketing or distribution rights relating to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in any products or territory or has agreed to purchase a material manner minimum quantity of goods or primarily services or has agreed to the acquisition, use, transfer, development, ownership, sharing purchase goods or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)services exclusively from a certain party;
(iii) each Purchased Contract creating or relating to any partnership, limited liability company agreement establishing a partnership or joint venture or similar venture or arrangementventure;
(iv) each Purchased Contract with any customer agreement (or production supplier that involvesgroup of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $50,000 or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or noncompetition;
(vi) any employment or consulting agreement;
(vii) any agreement involving any officer, director or stockholder of the Company or any affiliate (an "Affiliate"), as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), thereof;
(viii) any agreement under which the consequences of a default or termination would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of have a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii)Company Material Adverse Effect;
(ix) each noteany agreement which contains any provisions requiring the Company to indemnify any other party thereto (excluding indemnities contained in agreements for the purchase, debenture, bond, indenture, guarantee, loan, credit sale or financing agreement, instrument or other evidence of, or Contract for, Indebtedness license of Seller secured by or providing Encumbrances on products entered into in the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financingOrdinary Course of Business);; and
(x) any Contract, other agreement (or group of related agreements) either involving more than $50,000 or not entered into in the primary subject matter Ordinary Course of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii).
(b) Except as set forth on Schedule 4.11(b) The Company has delivered or made available to the Parent a complete and other than with accurate copy of each agreement listed in Section 2.14 of the Disclosure Schedule. With respect to the 787 Supply Agreementeach agreement so listed: (i) each Material Contract the agreement is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller andand in full force and effect; (ii) the agreement will continue to be legal, to Seller’s Knowledgevalid, of binding and enforceable and in full force and effect immediately following the other party or parties thereto and is enforceable Closing in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except the terms thereof as set forth on Schedule 4.11(c) and other than with respect in effect immediately prior to the 787 Supply Agreement: Closing; and (iiii) Seller has not violated neither the Company nor, to the knowledge of the Company, any other party, is in breach or breached in any material respect violation of, or committed any material default under, any Material Contract (in each casesuch agreement, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no factis pending or, circumstance or condition existsto the knowledge of the Company, that (is threatened, which, after the giving of notice, with or without notice or lapse of time time, or both) has (i) resulted in otherwise, would constitute a material violation breach or breach default by the Company or any Subsidiary or, to the knowledge of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respectCompany, any Material Contractother party under such contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 1 contract
Contracts. (a) For purposes Section 2.15(a) of the Disclosure Schedule sets forth a true, correct and complete list of the following agreements (written or oral) to which any Seller is a party and applicable to the Business as of the date of this Agreement, each of the following shall constitute a “Material Contract”:
(i) each Purchased Contract relating any agreement (or group of related agreements) for the lease of personal property from or to the employment third parties providing for lease payments in excess of $15,000 per annum or having a remaining term longer than three (whether on a full-time, part-time, consulting or other basis3) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000months;
(ii) except any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, (B) which involves more than the sum of $15,000, or (C) in which any Seller has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in any products or territory or has agreed to purchase a material manner minimum quantity of goods or primarily services or has agreed to the acquisition, use, transfer, development, ownership, sharing purchase goods or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)services exclusively from a certain Person;
(iii) each Purchased Contract creating any distribution, franchise, sales, commission, consulting, agency, or relating to any partnershipadvertising agreement concerning the Business, limited liability company except for agreements that are cancelable on not more than sixty (60) days notice by the Sellers without penalty or joint venture or similar venture or arrangementincreased cost;
(iv) each Purchased Contract with any customer agreement concerning the establishment or production supplier that involvesoperation of a partnership, joint venture or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000limited liability company;
(v) each Purchased Contract not any agreement (or group of related agreements) concerning the Business containing covenants restraining or limiting the freedom of any Seller or any officer, director, shareholder, or Affiliate thereof to engage in any line of business or to compete with any Person, including, without limitation, by restraining or limiting the right to solicit customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after could, giving effect to the delivery transactions contemplated hereby, restrain or limit the freedom of a termination notice by Seller and contemplating the Buyer or involvingany officer, director, shareholder, or reasonably anticipated Affiliate thereof to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate engage in any calendar year; (B) the performance by line of business or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in compete with any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar yearPerson;
(vi) each Seller Contract imposing any materialagreement (or group of related agreements) under which it has created, explicit restriction 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 of the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conductedAcquired Assets;
(vii) each Purchased Contract under which any agreement for the disposition of any significant portion of the assets or business of any Seller (Aother than sales of products in the Ordinary Course of Business) leases or subleases any real property agreement for the acquisition of the assets or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from business of any other Person involving lease payments entity (other than purchases of inventory or other consideration components in excess the Ordinary Course of $100,000 per annumBusiness);
(viii) any agreement with any Governmental Entity to which any Seller is a party or by which its assets are bound, and each Purchased Contract agreement with (A) any Affiliate of Seller (other than Person in connection with such Person’s agreement with any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii)Governmental Entity;
(ix) each note, debenture, bond, indenture, guarantee, loan, credit any agreement concerning exclusivity or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing)confidentiality;
(x) any Contractemployment or consulting agreement;
(xi) any agreement involving any current or former officer, director or stockholder of the primary subject matter Company or an Affiliate thereof;
(xii) any agreement under which the consequences of a default or termination would reasonably be expected to have a Business Material Adverse Effect;
(xiii) any agreement which is confidentialitycontains any provisions requiring the Seller or any Subsidiary to indemnify any other Person (excluding indemnities contained in agreements for the purchase, nondisclosure sale or similar license of products entered into in the Ordinary Course of Business);
(xiv) any agreement with respect that could reasonably be expected to confidentiality arrangements executed by have the effect of prohibiting or on behalf impairing the conduct of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xixv) any agreement under which any Seller is restricted from selling, licensing or otherwise distributing any of its technology or products, or providing services to, customers or potential customers or any class of customers, in any geographic area, during any period of time or any segment of the market or line of business;
(xvi) any agreement for the cleanup, abatement or other actions in connection with any Hazardous Material, the remediation of any existing environmental Liabilities, violation of any Environmental Laws or relating to the performance of any environmental audit or study;
(xvii) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or agreement with a value in excess pharmaceutical manufacturer or an agency representing a pharmaceutical manufacturer;
(xviii) any agreement which would entitle any third party to receive a license or any other right to intellectual property of $50,000the Buyer or any of the Buyer’s Affiliates following the Closing; and
(xiixix) each Purchased Contract set forth on Schedule 4.11(a)(xii)any other agreement (or group of related agreements) either involving more than $25,000 or not entered into in the Ordinary Course of Business.
(b) Except as set forth on Schedule 4.11(b) The Company has delivered to the Buyer a complete and other than with accurate copy of each agreement listed in Section 2.13 or Section 2.15 of the Disclosure Schedule. With respect to the 787 Supply Agreementeach agreement so listed: (i) each Material Contract the agreement is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation with respect to the Seller party thereto and in full force and effect; (ii) the agreement is assignable by the Sellers to the Buyer without the consent or approval of Seller and, to Seller’s Knowledge, any Person (except as set forth in Section 2.4 of the other party or parties thereto Disclosure Schedule) and is will continue to be legal, valid, binding and enforceable and in full force and effect immediately following the Closing in accordance with its termsthe terms thereof as in effect immediately prior to the Closing; and (iii) no Seller nor, subject only to applicable bankruptcythe Knowledge of the Seller, insolvencyany other Person, reorganization is in breach or violation of, or default under, any such agreement, and moratorium Laws and no event has occurred, is pending or, to the Knowledge of the Seller, is threatened, which, after the giving of notice, with lapse of time, or otherwise, would constitute a breach or default by the Sellers or, to the Knowledge of the Seller, any other Laws of general application affecting enforcement of creditors’ rights generallyPerson under such agreement.
(c) Except Section 2.15(c) of the Disclosure Schedule sets forth a true, complete and accurate list, as set forth on Schedule 4.11(cof a date no more than ten (10) and other than with respect Business Days prior to the 787 Supply Agreement: date hereof, of all signed Customer contracts of the Business under which performance by the Seller party thereto has not yet been completed, in each case setting forth:
(i) Seller has not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and Customer;
(ii) to product;
(iii) net booking value;
(iv) execution date;
(v) all revenue recognized by the Knowledge Seller party thereto through May 31, 2006; and
(vi) backlog as of SellerMay 31, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both)2006.
(d) Other than under All Customer contracts of the 787 Supply AgreementBusiness were entered into in the Ordinary Course of Business and are valid and binding obligations of each party thereto. No such Customer orders are at prices which, no event based on the past experience and current and anticipated costs, are or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted can reasonably be expected to result in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person loss to the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material ContractBusiness.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 1 contract
Contracts. (a) For purposes of this Agreement, each The Company Disclosure Schedule lists all of the following shall constitute a “Material Contract”types of Company Contracts, except for purchase orders with vendors, suppliers and customers covering inventory purchased or sold in the ordinary course of business, consistent in form and amount with past practice:
(i) each Purchased Each Contract relating (or group of related Contracts) which is to be performed in whole or in part at or after the date of this Agreement and which: (A) cannot be canceled upon 30 days' notice without payment or penalty of less than $10,000; (B) involves aggregate future payments by or to the employment (whether on a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary Company of more than $60,000 10,000; (C) involves material nonmonetary obligations to be performed later than one year from the date hereof; (D) otherwise materially affects the Company or for which its Business Condition; or (E) was not entered into in the cost ordinary course of such severance, termination or relocation payment would exceed $30,000business;
(ii) except Each Contract pursuant to which the extent included elsewhere Company: (A) has borrowed or is committed or entitled to borrow money in this Section 4.11(aan amount in excess of $10,000; (B) has lent or committed to lend money; or (C) has given or is committed to give a guarantee of, or otherwise to incur primary or secondary liability for (including any letter of credit), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license any obligation of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)party in any amount;
(iii) each Purchased Each Contract creating regarding advertising, brokerage, licensing, management, representative or relating to any partnership, limited liability company or joint venture or similar venture or arrangementagency relationships;
(iv) each Purchased Each Contract with or concerning any customer labor or production supplier that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000employee organization;
(v) each Purchased Each Contract not with customers for the Transfer of any properties, assets or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after rights of the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other Company for consideration in an amount or having a value in excess of $250,000 in 10,000 or for the aggregate in grant of any calendar yearpreferential right to purchase any of such assets, properties or rights, or which requires the consent of any third party to the Transfer of such assets, properties or rights;
(vi) Each Contract with any Seller or any Affiliate of the Company;
(vii) Each Contract: (A) under which the benefits cannot be retained upon the consummation of the transactions contemplated by this Agreement without the written consent or approval of other parties; (B) under which there will be a default as a result of the performance consummation of the transactions contemplated by this Agreement unless such other parties provide written consent or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar yearapproval; or (C) which would require the salemaking of any payment, lease or other disposition than payments as contemplated by this Agreement, to any employee of the Company or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess as a result of $100,000 per annumthe consummation of the transactions contemplated herein;
(viii) each Purchased Each Contract with (A) involving a guarantee by Seller or the Sherlines of any Affiliate the Company Indebtedness or imposing a Lien on personal assets of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii)Sherlines which serve as collateral for the Company Indebtedness;
(ix) each noteEach Contract pursuant to which the Company has granted or agreed to any discount in connection with future product sales, debenturerebates, bond, indenture, guarantee, loan, credit inventory balancing or financing agreement, instrument product returns or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing)exchanges;
(x) Each Contract providing the Company the right or license to use or exploit the IP of any Contract, the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;other Person; and/or
(xi) each Purchased Each Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value requiring the Company to make capital expenditures in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii)5,000.
(b) Except as set forth on Schedule 4.11(b) and other than with respect to the 787 Supply Agreement: (i) each Material Contract is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller and, to Seller’s Knowledge, of the other party or parties thereto and is enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Westminster Capital Inc)
Contracts. (a) For purposes Section 3.12(a) of this Agreement, each the Disclosure Schedule lists all of the following shall constitute Contracts that are in effect and to which the Company is a party or to which it, or any of its assets and properties, is bound (each such Contract, a “Material Contract”:):
(i) each Purchased Contract relating to the employment (whether on a full-timeemployment, part-timeindependent contractor, consulting or other basis) of any Employee of the Businessservices Contracts, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned in each case with Company Personnel that provide for an annual base salary of more than above $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000100,000;
(ii) except to the extent included elsewhere change in this Section 4.11(a)control, transaction bonus or retention Contracts, in each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)case with Company Personnel;
(iii) each Purchased Contract creating collective bargaining agreements or relating to other Contracts with any partnership, limited liability company labor union or joint venture or similar venture or arrangementother employee representative body;
(iv) each Purchased Contract with Contracts containing any customer material restriction on the Company’s solicitation, hiring or production supplier that involves, or would reasonably be expected to involve (assuming delivery engagement of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000any Person;
(v) each Purchased Contract not with customers or production suppliers Contracts that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or grant any exclusive rights (including exclusive rights in Company Intellectual Property) to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; Person, (B) limit the performance by freedom of the Company to compete with any Person or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate engage in any calendar year; line of business or geographic area, (C) materially restrict the research, development, manufacture, marketing, distribution, sale, lease supply, license or other disposition by marketing of the products and services of the Company or that the Company or any Affiliate currently plans to develop or (D) materially limit the Business freedom of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in Company to use any calendar yearCompany Intellectual Property after the Closing Date;
(vi) each Seller Contract imposing any material, explicit restriction on Contracts for the right purchase or ability sale of products or the furnishing or receipt of services (A) requiring or otherwise involving payment by or to the Business Company of more than an aggregate of $100,000 in a twelve (12) month period, (B) in which the Company has granted manufacturing rights, (C) in which the Company has granted “most favored nation” pricing provisions relating to any products or territory or (1D) compete with, in which the Company has agreed to purchase a minimum quantity of goods or solicit the services with a value greater than $100,000 or employment of, any other Person; has agreed to purchase certain goods or services exclusively from a certain party;
(2vii) sell any product Contracts relating to capital expenditures or other Assetpurchases of materials, or perform any services anywhere in the world; (3) acquire any product supplies, equipment or other Asset assets or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business properties (other than nondisclosure agreements)purchase orders for inventory or supplies entered in the Ordinary Course of Business) (A) in excess of $100,000 in a twelve (12) month period; or (B) Buyer to own and operate the 787 Program as currently conductedthat include minimum purchase requirements;
(viiviii) each Purchased any option, warrant, purchase right, or other Contract under (other than this Agreement) that could require the Company to sell, transfer, or otherwise dispose of any assets of the Company other than the sale of the Company Products to customers in the Ordinary Course of Business;
(ix) Contracts (or letters of intent) involving the disposition or acquisition of any product line, business or significant portion of the assets, properties or business of the Company, or any merger, consolidation or similar business combination transaction, whether or not enforceable;
(x) Contracts that have material continuing obligations or interests involving the payment by the Company of royalties, earnouts, development or commercialization milestones or other amounts calculated based on the revenues, income, achievement or regulatory, development, or commercial milestones of the Company;
(xi) Contracts for any limited liability company, joint venture, partnership, joint product development, strategic alliance or co-marketing arrangement;
(xii) Contracts in which Seller the other party is a healthcare practitioner;
(xiii) Contract in which the other party is an Affiliate of the Company;
(xiv) Contracts that provide for the indemnification of any Person by the Company, except for Contracts entered into in the Ordinary Course of Business;
(xv) Contracts (A) leases granting to a third party any rights, title, interests, license or subleases sublicense to any real property Company Intellectual Property, or (B) leases pursuant to which the Company uses or subleases licenses any buildingsthird party Intellectual Property or has been granted by a third party any rights, structurestitle, improvements interests, license or appurtenancessublicense to any Intellectual Property, except, in whole each case, for Off-the-Shelf Software Licenses;
(xvi) Contracts (other than trade debt incurred in the Ordinary Course of Business) under which the Company has borrowed (or in partmay borrow) any money from, from or issued (or may issue) any other Person involving lease payments note, bond, debenture or other consideration evidence of Indebtedness to, any Person;
(xvii) Contracts granting a Lien (other than Permitted Liens) upon any property or asset (including Intellectual Property) of the Company;
(xviii) Contracts involving any resolution or settlement of any Action;
(xix) Contracts with any Governmental Entity; and
(xx) Any other Contracts involving future payments by or to the Company in excess of $100,000 per annum;
in a twelve (viii12) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing);
(x) any Contract, the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii)month period.
(b) Except as set forth on Schedule 4.11(b) and other than with respect to the 787 Supply Agreement: (i) each Each Material Contract is in full force and effect effect, and (ii) each Material Contract constitutes a legal, valid, is valid and binding and enforceable obligation of Seller and, to Seller’s Knowledge, of the other party or parties thereto and is enforceable in accordance with its termsterms against the Company and, to the Knowledge of the Company, the other parties thereto, subject only to applicable bankruptcy, insolvency, reorganization and reorganization, fraudulent transfer, moratorium or similar Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(c) generally and other than with respect to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse general principles of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreementequity. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available in the Data Room to BuyerBuyer and its Representatives. There is no material violation, breach or default under any Material Contract by the Company or, to the Knowledge of the Company, by any other party thereto, and no event has occurred or condition exists that with the lapse of time or the giving of notice or both would constitute a material default thereunder by the Company or, to the Knowledge of the Company, any other party thereto.
Appears in 1 contract
Contracts. (a) For purposes Section 2.15 of the Disclosure Schedule lists the following agreements (written or oral) to which the Seller is a party as of the date of this AgreementAgreement (collectively, each of the following shall constitute a “Material ContractContracts”:):
(i) each Purchased Contract any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which involves more than the sum of $100,000, or (B) in which the Seller has granted manufacturing rights, “most favored nation” pricing provisions or exclusive marketing or exclusive distribution rights relating to the employment (whether on any products or territory or has agreed to purchase a full-time, part-time, consulting minimum quantity of goods or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control services or other Contract pursuant has agreed to which Seller is purchase goods or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000services exclusively from a certain party;
(ii) except any agreement (or group of related agreements) for the lease of personal property from or to the extent included elsewhere third parties providing for lease payments in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license excess of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)$25,000 per annum;
(iii) each Purchased Contract creating any agreement concerning the establishment or relating to any operation of a partnership, limited liability company or joint venture or similar venture or arrangementlimited liability company;
(iv) each Purchased Contract with any customer agreement (or production supplier group of related agreements) under which it has created, incurred, assumed or guaranteed indebtedness (including capitalized lease obligations) involving more than $25,000 or under which it has imposed a Security Interest on any of its assets, tangible or intangible;
(v) any agreement for the disposition of any significant portion of the assets or business of the Seller (other than sales of products in the Ordinary Course of Business) or any agreement for the acquisition of the assets or business of any other entity (other than purchases of inventory or components in the Ordinary Course of Business);
(vi) any confidentiality or noncompetition agreement that involvesis material to the continued operation of the business (provided, that the Disclosure Schedule need not list any such agreements that are substantially in the form or forms provided to counsel for the Buyer);
(vii) any employment or consulting agreement (provided, that the Disclosure Schedule need not list any such agreements that are substantially in the form or forms provided to counsel for the Buyer);
(viii) any agreement involving any future payment or series of related future payments (except in regard to purchases of the Seller’s capital stock) in excess of $50,000 in the aggregate to or from any current or former officer, director or stockholder of the Seller or an Affiliate thereof;
(ix) any agreement under which the consequences of a default or termination would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by have a Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing)Material Adverse Effect;
(x) any Contractagreement which contains any provisions requiring the Seller to indemnify any other party (excluding indemnities contained in agreements for the purchase, sale or license of products entered into in the primary subject matter Ordinary Course of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business);
(xi) each Purchased Contract which createsall contracts or arrangements providing for “earn-outs,” “performance guarantees” or contingent payments by the Seller involving more than $50,000 over the term of the contract, agreement or may createarrangement,
(xii) all distribution agreements or arrangements, an Encumbrance on whether as principal or agent involving any Purchased Asset in an amount payment or with a value series of related payments to or from the Company in excess of $50,00050,000 in the aggregate since August 1, 2003;
(xiii) all agreements or arrangements with customers, distributors or suppliers for the sharing of fees or other similar arrangements;
(xiv) all agreements or arrangements involving indebtedness of the Seller for borrowed money, letters of credit, the deferred purchase price of property, conditional sale arrangements, capital lease obligations, obligations secured by a Security Interest, or interest rate or currency hedging activities (including guarantees (other than the Seller’s guarantee of its Subsidiaries warranty obligations) or other contingent liabilities in respect of any of the foregoing but in any event excluding trade payables arising in the Ordinary Course of Business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment); and
(xiixv) each Purchased Contract set forth on Schedule 4.11(a)(xii)any other agreement (or group of related agreements) either involving more than $50,000 or not entered into in the Ordinary Course of Business.
(b) Except as set forth on Schedule 4.11(b) The Seller has delivered or made available to the Buyer a complete and other than with accurate copy of each Material Contract listed in Section 2.15 of the Disclosure Schedule. With respect to the 787 Supply Agreementeach Material Contract listed: (i) each Material Contract the agreement is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of and in full force and effect with respect to the Seller and, to the Seller’s Knowledgeknowledge, of the with respect to each other party thereto; (ii) for those agreements to which the Seller is a party, the agreement is assignable by the Seller to the Buyer without the consent or parties thereto and is enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws approval of general application affecting enforcement of creditors’ rights generally.
any party (c) Except except as set forth on Schedule 4.11(cin Section 2.4 of the Disclosure Schedule) and other than will continue to be legal, valid, binding and enforceable and in full force and effect with respect to the 787 Supply Agreement: Seller and, to the best of the Seller’s knowledge, with respect to the other parties thereto, immediately following the Closing in accordance with the terms thereof as in effect immediately prior to the Closing; and (iiii) neither the Seller has not violated nor, to the knowledge of the Seller, any other party, is in breach or breached in any material respect violation of, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt term of any written Claim of such default or breach; agreement, and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no factis pending or, circumstance or condition existsto the knowledge of the Seller, that (is threatened, which, after the giving of notice, with or without notice or lapse of time time, or both) has (i) resulted in otherwise, would constitute a material violation breach or breach default by the Seller or, to the knowledge of any provision of any Material Contract by the Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contractother party under such agreement.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 1 contract
Contracts. (a) For purposes SCHEDULE 2.16 is a complete list of this Agreement, each of the following shall constitute a “Material Contract”:
all written or oral (i) each Purchased Contract relating to the employment contracts, arrangements or policies, (whether on a full-time, part-time, consulting including without limitation any collective bargaining contract or other basisunion agreement) of the Company which may not be immediately terminated without penalty (or any Employee augmentation or acceleration of benefits); (ii) leases, sales contracts and other agreements with respect to any property, real or personal, of the BusinessCompany which provide for the receipt or expenditure by the Company after January 1, and any “stay pay,” termination1997, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000;
(ii) except to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements);
100,000; (iii) each Purchased Contract creating contracts or relating to any partnership, limited liability company commitments for capital expenditures or joint venture or similar venture or arrangement;
(iv) each Purchased Contract with any customer or production supplier that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration acquisitions in excess of $100,000 per annum;
for one project or set of related projects; (iv) agreements, contracts, indentures or other instruments relating to the borrowing of money, or the guarantee of any obligation (third party or otherwise) for the borrowing of money; (v) contracts or agreements providing for any covenant not to compete by the Company or otherwise restricting in any way the Company's engaging in the airline business or competing in any business activity (including a description of the businesses to which the covenant not to compete applies); (vi) contracts or agreements relating to consultancies, professional retentions, agency or sales arrangements pertaining to the Company or its activities which provide for the receipt or expenditure by the Company after January 1, 1997, of more than $100,000; (vii) contracts, agreements or commitments requiring the Company to indemnify or hold harmless any Person providing for the potential expenditure by the Company of more than $100,000 in the aggregate; and (viii) each Purchased Contract with (A) any Affiliate of Seller (contracts, agreements, arrangements or commitments, other than the foregoing, which provide for the receipt or expenditure by the Company after January 1, 1997, of more than $100,000, (all agreements, arrangements or commitments required to be identified in SCHEDULE 2.16 being hereinafter referred to as "Contracts"). True and correct copies of all the Contracts identified in SCHEDULE 2.16 have been furnished to GoodAero or its counsel. Except as set forth on SCHEDULE 2.16: (i) all Contracts are valid and subsisting, and the Company has duly performed its obligations thereunder in all material respects to the extent such obligations have accrued, and (ii) no breach or default thereunder by the Company or, to the knowledge of the Company, any employee other party thereto has occurred that could impair the ability of Seller) or (B) the Company to enforce any material rights thereunder. Except as set forth on SCHEDULE 2.16, there are no liabilities of any of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit parties to any of the Contracts arising from any breach of or financing agreement, instrument default in any provision thereof or other evidence of, or Contract for, Indebtedness which would permit the acceleration of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing);
(x) any Contract, the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to any party thereto or the Business;
(xi) each Purchased Contract which creates, creation of a lien or may create, an Encumbrance on encumbrance upon any Purchased Asset in an amount or with a value in excess asset of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii)the Company.
(b) Except as set forth on Schedule 4.11(botherwise contemplated by this Agreement, following receipt of all of the Third Party Approvals, the continuation, validity and effectiveness of all Contracts under the current material terms thereof will not be adversely affected by the transactions contemplated by this Agreement, and there are no negotiations pending or in progress to revise any such Contracts outside the ordinary course of business, except as contemplated by Sections 6.02(k) and other than with respect to the 787 Supply Agreement: (i6.02(m) each Material Contract is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller and, to Seller’s Knowledge, of the other party or parties thereto and is enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generallyhereof.
(c) Except as set forth on Schedule 4.11(c) and other than with respect to SCHEDULE 2.16 or otherwise contemplated by this Agreement, the 787 Supply Agreement: (i) Seller has Company does not violated have outstanding any bid, contract, commitment or breached proposal not made in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse the ordinary course of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both)business.
(d) Other than under To the 787 Supply AgreementCompany's knowledge, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a no material violation customers or breach suppliers of any provision of any Material Contract by Seller; the Company intend to cease purchasing from, selling to or dealing with the Company, and (ii) given any Person the right no such customer or supplier intends to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, alter in any material respectrespect the amount of such purchases, sales or the extent of dealings with the Company or would alter in any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on significant respect such schedule) and a summary description of all material terms of any oral purchases, sales or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), dealings in each case as the event of the date consummation of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyerthe transactions contemplated hereby.
Appears in 1 contract
Contracts. (a) For purposes Section 3.10 of the Company Disclosure Letter lists each of the following Contracts which the Company or any Subsidiary, as of the date of this Agreement, each of the following shall constitute is a “Material Contract”party to or bound by:
(i) each Purchased any Contract relating to the employment outstanding indebtedness (whether on a full-time, part-time, consulting or other basisincluding letters of credit) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract for borrowed money from third party lending sources pursuant to which Seller is the Company or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned Subsidiary has borrowed an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000;
(ii) except to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements);
(iii) each Purchased Contract creating or relating to any partnership, limited liability company or joint venture or similar venture or arrangement;
(iv) each Purchased Contract with any customer or production supplier that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure amount in excess of $2,000,000;
(vii) with respect to any joint venture, partnership or other similar agreement or arrangement with a third party, any Contract that relates to the formation, creation, operation, management or control of such joint venture, partnership or similar agreement or arrangement, in each Purchased case other than Investment Assets;
(iii) any Contract not with customers that involves or production suppliers that may not would reasonably be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated expected to involve, (A) the payment or delivery involve aggregate payments by or to the Business of cash Company or other consideration in an amount or having a value any Subsidiary in excess of $250,000 2,000,000 in the aggregate in any calendar year; most recent twelve-month period, other than (A) agreements solely between or among the Company or one or more Subsidiaries, (B) Contracts pursuant to which the performance Company or any Subsidiary provides or purchases insurance, reinsurance or retrocession and (C) Contracts that can be terminated by the Company or for any Subsidiary on less than 90 days’ notice without payment by the Business Company or any Subsidiary of services in an amount any material penalty;
(iv) any Contract (A) that would limit the freedom of the Company or having a value in excess of $250,000 in the aggregate any Subsidiary to compete in any calendar year; line of business or with any person or in any area after the Closing, (B) that contains exclusivity obligations or restrictions that would be binding on the Company or any Subsidiary after the Closing or (C) pursuant to which the saleCompany or any Subsidiary provides “most favored nations” pricing status to any third party, lease in each case other than Contracts that can be terminated (including such restrictive provisions) by the Company or other disposition any Subsidiary on less than 90 days’ notice without payment by the Company or any Subsidiary of any material penalty;
(v) any Contract relating to the Business of goodsany material interest rate, supplies, products and/or other Assets in an amount derivatives or having a value in excess of $250,000 in the aggregate in any calendar yearhedging transaction;
(vi) each Seller any Contract imposing between the Company or any materialSubsidiary, explicit restriction on the right or ability one hand, and any Key Employee of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset Company or any services from any Subsidiary, on the other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conductedhand;
(vii) each Purchased any material Contract under which Seller (A) leases that relates to the investment management function of or subleases any real property the provision of investment management or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess advisory services to the business of $100,000 per annumthe Company and the Subsidiaries;
(viii) each Purchased any Contract with that relates to the acquisition or disposition of any division or line of business or operations, capital stock or assets or any real estate as to which there are any material ongoing obligations of the Company;
(ix) any Contract under which the Company or any Subsidiary has committed to make any investment (in the form of a loan, capital contribution or otherwise), in any other person (other than the Company or the Subsidiaries), other than (A) any Affiliate of Seller (other than any employee of Seller) Investment Asset or (B) any of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing)investment in an amount less than $2,000,000;
(x) any ContractContract under which the Company or any Subsidiary has directly or indirectly guaranteed liabilities or obligations of any person, other than the primary subject matter Company or any Subsidiary (and in each case other than (A) endorsements for the purpose of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf collection in the ordinary course of Seller with respect to the Business business and (B) Contracts pursuant to which the Company or any third party owes an obligation Subsidiary provides or purchases insurance, reinsurance or retrocession in the ordinary course of confidentiality to Seller business), in relation to the Business;any such case which, individually, is in excess of $2,000,000; and
(xi) each Purchased any Contract which createsthat prohibits the payment of dividends or distributions in respect of the capital stock of the Company or any Subsidiary, prohibits the pledging of the capital stock of the Company or may create, an Encumbrance on any Purchased Asset in an amount Subsidiary or with a value in excess prohibits the issuance of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii)any guarantee by the Company or any Subsidiary.
(b) Except as set forth on Schedule 4.11(b) and other than with respect to the 787 Supply Agreement: (i) each Material Contract is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller and, to Seller’s Knowledge, of the other party or parties thereto and is enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as As of the date of this Agreement, each Contract required to be listed in Section 3.10 of the Company Disclosure Letter (each, a “Listed Contract”) is a valid and binding agreement of the Company or Subsidiary party thereto and, to the Knowledge of the Company, any other party thereto and is in full force and effect, except for such failures to be valid, binding or in full force and effect that are not material. A trueThe Company or the applicable Subsidiary has performed all material obligations required to be performed by it to date under the Listed 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 to any Listed Contract is (with or without the lapse of time or the giving of notice, or both) in breach or default in any material respect thereunder, except for such noncompliance, breaches and defaults that, individually or in the aggregate, have not had and would not reasonably be expected to be material to the Company and the Subsidiaries, taken as a whole. As of the date of this Agreement, none of Seller, the Company and the Subsidiaries has received any notice of termination of, or the intention of any party to terminate any Listed Contract. Complete and correct and complete copy copies of each such Listed Contract, together with all written Material Contract (including all modifications and amendments thereto) has , have been made available to BuyerPurchaser.
Appears in 1 contract
Sources: Stock Purchase Agreement (White Mountains Insurance Group LTD)
Contracts. (a) For purposes 3.1 As of the date of this Agreement, each Section 3.1 of the following shall constitute Disclosure Schedule contains a “Material Contract”:
true, correct and complete list of all contracts in excess of INR 41 Million referred to in clauses (i) through (xv), inclusive, of this Section 3.1 to which the Company or any SMC Group Companies is a party (each, a “Listed Contract” and, collectively, the “Listed Contracts”). True, correct and complete copies of each Purchased Listed Contract relating have been made available to the Investor:
i) Contract notes (other than in the Ordinary Course of Business), debentures, other evidences of indebtedness, guarantees, loans, credit or financing agreements or instruments, or other Listed Contracts for money borrowed, including any agreements or commitments for future loans, credit or financing;
ii) Contracts with any labor union or contracts for the employment (whether of any Person on a full-time, part-timetime or consulting basis or any consulting, consulting termination or severance agreements to the extent there remain payment obligations to be performed by the Company or any SMC Group Companies;
iii) leases of real property from or to a Person;
iv) leases, rental or occupancy agreements, installment and conditional sale agreements, and other Contracts affecting the ownership of, leasing of, title to, use of, or any
v) leasehold or other basisinterest in, any personal property or asset involving individual annual aggregate payments in excess of INR 20.5 million and which are not terminable by the Company or an SMC Group Companies without penalty or further payment or without more than 90 days’ notice;
vi) joint venture, partnership or limited liability company agreements involving a share of profits, losses, costs or liabilities (excluding agreements with third parties involving the co-branding and hosting of websites under a revenue sharing arrangement);
vii) Contracts explicitly requiring fixed expenditures after the date of this Agreement in an amount in excess of INR 20.5 million which are not terminable by the Company or an SMC Group Companies without penalty at its discretion;
viii) Contracts with any Employee Person that generated consolidated net revenues for the Company and SMC Group Companies during the twelve months ended March 31, 2007 in excess of INR 20.5 million other than brokerage contracts;
ix) licensing agreements with respect to proprietary rights that obligate the BusinessCompany or any SMC Group Companies to make royalty payments, license fee payments or other similar payments after the date of this Agreement;
x) Listed Contracts between the Company or an SMC Group Companies, on the one hand, and any “stay pay,” terminationdirector, change officer, equity holder or Affiliate of control the Company or any SMC Group Companies, on the other Contract hand, or any former director, officer, equity holder or Affiliate to the extent there remain payment or issuance of equity obligations to be performed by the Company or any SMC Group Companies pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee such Listed Contracts;
xi) Listed Contracts containing covenants limiting the freedom of the Business who earns Company or earned an annual base salary any SMC Group Companies in any material respect to compete with any Person in any line of more than $60,000 business or for which the cost of such severance, termination in any area or relocation payment would exceed $30,000territory;
xii) all Listed Contracts that result in any Person holding a power of attorney from the Company or any SMC Group Companies that relates to the Company, any SMC Group Companies or their respective businesses (other than powers of attorney granted in the ordinary course of business to (i) patent counsel engaged in the prosecution of patents, trademark counsel and their agents engaged in applying for trademarks and accountants engaged in filing tax returns, and (ii) except to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct employees of the Business (Company or any SMC Group Companies to act on behalf of the Company or such SMC Group Companies with respect to Taxes); and
xiii) all other than nondisclosure agreements);
(iii) each Purchased Contract creating Listed Contracts, whether or relating to any partnershipnot made in the ordinary course of business, limited liability company or joint venture or similar venture or arrangement;
(iv) each Purchased Contract with any customer or production supplier that involves, or the termination of which would reasonably be expected to involve (assuming delivery of eighty-four (84have a Material Adverse Effect.
xiv) shipsets per year)Except for such exceptions as would not, the payment individually or expenditure in excess of $2,000,000;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having aggregate, reasonably be expected to have a value in excess of $250,000 in the aggregate in any calendar year; or (C) the saleMaterial Adverse Effect, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing);
(x) any Contract, the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii).
(b) Except as set forth on Schedule 4.11(b) and other than with respect to the 787 Supply Agreement: (i) each Material Listed Contract is in full force and effect and represents a legally valid and binding obligation of the Company or an SMC Group Companies which is a party thereto, (ii) the Company and each Material Contract constitutes SMC Group Companies has performed, in all material respects, all obligations required to be performed by it under each of the Listed Contracts to which it is a legal, valid, binding and enforceable obligation of Seller party and, to Seller’s Knowledge, the Knowledge of the Warrantors, each other party to such Listed Contracts has performed, in all material respects, all obligations required to be performed by it under such Listed Contracts, and (iii) neither the Company nor any SMC Group Companies is in material breach or parties thereto and violation of, or material default under, any of the Listed Contracts to which it is enforceable in accordance with its termsa party, subject only nor has the Company or any SMC Group Companies received any written notice that it has materially breached, violated or defaulted under any of the Listed Contracts to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generallywhich it is a party except for income from brokerage.
(cxv) Except as set forth on Schedule 4.11(c) and other than with respect to Section 3.1 of the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default underDisclosure Schedule, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct neither the Company nor SMC Group Companies nor the Warrantors have received any notice, nor has any Knowledge, that any Person that generated consolidated net revenues for the Company or SMC Group Companies during the twelve months ended Match 31, 2006 in excess of INR 20.5 million intends to terminate, materially reduce (i.e., reduction by more than 5% from actual consolidated net revenues for such twelve month period) or otherwise materially alter its business or relationship with the Company or any SMC Group Companies and complete copy of each no such written Material Contract Person has terminated, materially reduced or otherwise materially altered its business or relationship with the Company or any SMC Group Companies in the last twelve (including all amendments thereto12) has been made available to Buyermonths.
Appears in 1 contract
Sources: Share Subscription Agreement (Millennium India Acquisition CO Inc.)
Contracts. (a) For purposes Except as set forth on Section 3.15(a) of the Seller Disclosure Schedule, as of the date of this Agreement, each none of the following shall constitute a “Material Contract”Sold Companies is party to any written or oral:
(i) each Purchased Contract Contracts for the purchase of materials, supplies, equipment, or other tangible assets directly used by the Business in products, goods, equipment or other assets that are intended to be sold to third-parties requiring aggregate annual payments by Seller or any of the Sold Companies of at least $1,000,000, excluding any such Contracts that are terminable by Seller or the Sold Companies without penalty on not more than 90 days’ notice;
(ii) Contracts, other than those described in Section 3.15(a)(i) (without regard to the monetary threshold therein) or Section 3.15(a)(ix), for the purchase of materials, supplies, equipment, services, or other tangible assets in respect of the Business, requiring aggregate annual payments by Seller or any of the Sold Companies of at least $1,000,000, excluding any such Contracts that are terminable by Seller or the Sold Companies without penalty on not more than 90 days’ notice;
(iii) Contracts relating to the incurrence or assumption of Indebtedness or imposing an Encumbrance on any assets of the Sold Companies, including indentures, loan or credit agreements, sale and leaseback agreements, purchase money obligations, in each case, in excess of $1,000,000 individually or $3,000,000 in the aggregate;
(iv) Contracts relating to the full or partial guarantee of the obligations of other Persons (other than any of the Sold Companies) involving the potential expenditure by the Sold Companies after the date of this Agreement of more than $500,000 in any instance;
(v) Contracts that restrict the Sold Companies from freely engaging in any business or competing with any Person in any geographic area;
(vi) joint venture, partnership, collaboration, strategic alliance, joint development or other similar Contracts;
(vii) collective bargaining agreements or any other agreements with any labor union, work councils, employee representatives, labor boards or similar associations that will be applicable to Transferred Employees after the Closing;
(viii) Contracts pursuant to which any Sold Company has (A) acquired the right to use any material Intellectual Property or (B) granted to any third party or Governmental Authority any license to use any material Intellectual Property owned by such Sold Company, other than, in each of cases (A) and (B), “off-the-shelf” software, Intellectual Property that is generally commercially available or has annual fees of less than $100,000 or licenses to use Intellectual Property granted in the Ordinary Course of Business;
(ix) all acquisition, disposition, merger or asset purchase or sale agreements entered into by the Sold Companies (A) during the five (5) year period prior to the date of this Agreement relating to the Business for aggregate consideration in excess of $1,000,000, or (B) providing for material continuing payment obligations (excluding indemnification obligations) of the Sold Companies;
(x) Contracts in respect of Leased Real Property;
(xi) Contracts containing (1) “take or pay”, “requirements” or other similar provisions obligating a Person to provide the quantity of goods or services required by another Person or (2) pricing or margin provisions that provide “most favored nation” or similar provisions with respect to pricing;
(xii) Contracts granting to any Person a right of first refusal or option to purchase or acquire any assets or business of any of the Sold Companies;
(xiii) Any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(xiv) Contracts, other than those described in Sections 3.15(a)(i), (ii) or (xii), under which any Sold Company made or received payments of at least $5,000,000 in the fiscal year ending December 31, 2014 or, to the Knowledge of Seller, is expected to make or receive payments during the fiscal year ending December 31, 2015 in excess of $5,000,000;
(xv) Contracts for the employment (whether of any Person on a full-time, part-time, consulting or other basisbasis (A) of any Employee of the Business, and any “stay pay,” termination, change of control which provided annual cash or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000;
(ii) except to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements);
(iii) each Purchased Contract creating or relating to any partnership, limited liability company or joint venture or similar venture or arrangement;
(iv) each Purchased Contract with any customer or production supplier that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure compensation in excess of $2,000,000100,000 during and with respect to the Sold Companies’ fiscal year 2014 or whose total compensation during and with respect to the Sold Companies’ fiscal year 2015 is reasonably expected to be $100,000 or more, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the Transactions, or (C) otherwise restricting its ability to terminate the employment of any employee at any time for any lawful reason or for no reason without penalty or liability;
(vxvi) each Purchased Contract not with customers Contracts under which any Sold Company has made any advances or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated loans to involve, (A) the payment or delivery by or to the Business of cash or any other consideration in an amount or having a value Person in excess of $250,000 in the aggregate in 100,000 individually or to any calendar year; (B) the performance by or for the Business of services in an amount or having a value Persons in excess of $250,000 1,000,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar yearaggregate;
(vixvii) each Seller Contract imposing any material, explicit restriction on the right leases or ability of agreements under which a Sold Company is: (A) the Business to (1) compete withlessee of or holds or operates any personal property, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from owned by any other Person, sell any product or other Asset to or perform any services except for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to lease of personal property under which the Business (other than nondisclosure agreements)aggregate annual rental payments do not exceed $100,000; or (B) Buyer lessor of, or permits any third party to own and operate the 787 Program as currently conductedhold or operate, any personal property owned or controlled by such Sold Company;
(viixviii) each Purchased except as set forth on Schedule 5.16, any Contract under to which any Sold Company is a party that contains any right or obligation that relates to any business of Seller or any of its Subsidiaries other than the Business, including any right of the counterparty to set-off amounts owed to the Business or the Sold Companies against amounts owed to such counterparty by Seller or any of its Subsidiaries with respect to any of their businesses other than the Business; and
(Axix) leases or subleases Contracts containing any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration future capital expenditure obligations of the Sold Companies in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing);
(x) any Contract, the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xii) each Purchased Contract 1,000,000. The contracts set forth on Section 3.15(a) of the Seller Disclosure Schedule, the Government Contracts set forth on Section 3.22(a) of the Seller Disclosure Schedule 4.11(a)(xii)and the Material Government Bids are collectively referred to herein as the “Material Contracts”.
(b) Except as set forth on Schedule 4.11(bin Section 3.15(b) and other than with respect to of the 787 Supply Agreement: Seller Disclosure Schedule, (i) each Sold Company, and, to the Knowledge of Seller, each of the other Person who are a party thereto, has performed in all material respects all obligations required to be performed by it under each Material Contract and (ii) other than expiration of the term of any Material Contracts after the date hereof pursuant to and in accordance with the terms thereof (and without any breach by any party thereto), each Material Contract is in full force and effect effect, and (ii) each Material Contract constitutes is a legal, valid, valid and binding and enforceable obligation of Seller and, to Seller’s Knowledge, agreement of the other party or parties thereto and is applicable Sold Company, enforceable against such Sold Company in accordance with its terms, subject only to applicable the effects of bankruptcy, insolvency, reorganization and fraudulent conveyance, reorganization, moratorium Laws and other similar Laws of general application relating to or affecting enforcement of creditors’ rights generally.
, general equitable principles (c) whether considered in a proceeding in equity or at Law). Except as set forth on Schedule 4.11(cSection 3.15(b) and other than with respect to of the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default underDisclosure Schedule, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person condition exists or event has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, occurred that (with or without notice or lapse of time or both) has (i) resulted in would constitute a material violation breach or default thereunder by any Sold Company party thereto or, to the Knowledge of Seller, any other Person party thereto, and none of the Sold Companies has received notice of (x) any such material breach of or default or event, (y) any provision material dispute with any term or condition of any Material Contract by Seller; Contract, or (iiz) given any Person the right to declare a material default termination or exercise any remedy for breach under non-renewal of any Material Contract; (iii) given , except for any Person breach, default, event, dispute, termination or non-renewal that would not reasonably be expected, individually or in the unilateral right aggregate, to accelerate be material to the maturity of material obligations pursuant to any Material Contract; Sold Companies or (iv) give any Person the right to cancelBusiness. True, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list complete and correct copies of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms accurate summaries of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments theretoContracts), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments amendments, modifications or supplements thereto) has been , were made available to Buyer.
Appears in 1 contract
Contracts. (a) For purposes of this Agreement, each Section 3.10(a) of the following shall constitute Disclosure Schedule sets forth the Contracts to which the Company or any of its Subsidiaries is a party or by which it or any of their assets are bound of the types described below and categorized accordingly (the “Material ContractContracts”:):
(i) each Purchased Contract relating Contracts involving payments to the employment (whether on a full-time, part-time, consulting Company or other basis) any of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary its Subsidiaries of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,00075,000 per year;
(ii) except to Contracts limiting the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct ability of the Business (other than nondisclosure agreements)Company or any of its Subsidiaries to engage in any line of business or to compete with any Person or to conduct business in any geographical area;
(iii) each Purchased Contract creating Contracts that require the Company or relating any of its Subsidiaries to make minimum aggregate annual purchases or payments in excess of $75,000 which have a term of more than one (1) year and cannot be cancelled with less than sixty (60) days’ notice without penalty or other financial obligation imposed on the Company or any partnership, limited liability company or joint venture or similar venture or arrangementof its Subsidiaries;
(iv) each Purchased Contract with any customer or production supplier that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000written employment Contracts;
(v) each Purchased Contract not Contracts between the Company or any of its Subsidiaries, on the one hand, and Seller or its Affiliates (other than the Company and its Subsidiaries), on the other hand;
(vi) Contracts for Debt of the Company or any of its Subsidiaries (other than accounts payable to trade creditors in the ordinary and usual course of business consistent with customers past custom and practice);
(vii) Contracts involving the future disposition or production suppliers acquisition of assets or properties involving consideration of more than $75,000;
(viii) Contracts that may not require payments to be terminated (without penalty) by Seller within thirty (30) days after the delivery of made as a termination notice by Seller and contemplating or involvingresult of, or reasonably anticipated to involve, (A) the payment or delivery are accelerated by or to are terminable as a result of, the Business entering into of cash or other consideration in an amount or having a value this Agreement and/or the consummation of the transactions contemplated hereby;
(ix) Contracts with any Governmental Body;
(x) Contracts for the lease of personal property involving aggregate payments in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate 75,000 in any calendar year;
(vixi) each Seller Contract imposing Contracts relating to the settlement or compromise of any materialactions or Orders disclosed in Section 3.13 of the Disclosure Schedule;
(xii) Contracts to loan money or, explicit restriction on other than in the right or ability ordinary course of (A) the Business business, extend credit to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing);
(x) any Contract, the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xiixiii) each Purchased Contract set forth on Schedule 4.11(a)(xii)all joint venture or partnership Contracts involving a sharing of profits or losses with any Person.
(b) Except Notwithstanding anything in this Section 3.10, “Material Contracts” shall not include any Contract that will be fully performed or satisfied as set forth on Schedule 4.11(b) and other than with respect of or prior to the 787 Supply Agreement: (i) each Closing or any of the Real Property Leases. Each Material Contract is in full force and effect and (ii) each Material Contract constitutes a is the legal, valid, valid and binding and enforceable obligation of Seller andthe Company or its Subsidiaries, as applicable, except to Seller’s Knowledge, of the other party or parties thereto and is enforceable in accordance with extent that its terms, enforceability may be subject only to applicable bankruptcy, insolvency, reorganization and reorganization, moratorium or other similar Laws and other Laws of general application affecting the enforcement of creditors’ rights generally.
(cgenerally and by general equitable principles. Neither the Company nor any of its Subsidiaries is in material default under any Material Contract. Seller has made available to Purchaser copies of all Material Contracts, including all amendments, modifications or supplemental arrangements with respect thereto and, except as reflected in Section 3.10(a) Except as set forth on Schedule 4.11(c) and other than of the Disclosure Schedule, there have been no amendments, modifications or supplemental arrangements to or with respect to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default under, any Material Contracts. Neither the Company nor any of its Subsidiaries has received written notice from any other party to a Material Contract (in each case, with of its present intention to exercise any right of termination or without notice or lapse of time or both), nor is it in receipt of any written Claim cancellation of such default or breach; and (ii) to Material Contract. To the Knowledge of Seller, no other Person has violated or breached party to any such Contract is in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 1 contract
Contracts. (a) Section 2.7 of the Company Disclosure Schedule identifies each Company Significant Contract (as defined below) that is currently in effect. For purposes of this Agreement, each of “Company Significant Contract” shall mean a legally binding, executory Contract to which the following shall constitute Company is a “Material Contract”:
party that is: (i) each Purchased Contract relating to a material contract containing covenants limiting the employment (whether on a full-time, part-time, consulting or other basis) of any Employee freedom of the Business, and Company to engage in any “stay pay,” termination, change line of control business in any geographic area or other Contract pursuant to which Seller is or may become obligated to make compete with any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000;
(ii) except to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to Person that materially limits the conduct of the Business business of the Company as presently conducted, including limitations on the Company’s freedom to enter into other contracts, in each case except for any contract made in the ordinary course of business; (other than nondisclosure agreements);
(iiiii) each Purchased Contract creating or relating to any partnership, limited an employment contract that has an annual future salary liability company or joint venture or similar venture or arrangement;
(iv) each Purchased Contract with any customer or production supplier that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000;
75,000 and is not terminable by the Company by notice of not more than 90 days for a cost of less than $75,000; (iii) a material contract with any officer, director or employee of the Company (other than employment contracts covered by clause (ii) above); (iv) a contract or instrument under which (a) any Person has guaranteed liabilities of the Company or (b) the Company has guaranteed liabilities of any Person (in each case, which guarantee obligation exceeds $50,000, or the aggregate of which guarantee obligations exceed $100,000, and is in effect on the date hereof); (v) each Purchased Contract not with customers or production suppliers that may not be terminated a contract which (without penaltyA)(1) provides for payments by Seller within thirty (30) days the Company after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value date hereof in excess of $250,000 in 50,000 during any one-year period or $100,000 over the aggregate in any calendar year; (B) term of the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; contract and (2) sell any product or other Asset, or perform any services anywhere in is not terminable by the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services Company for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other a cost of less than nondisclosure agreements); $100,000 or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases provides for any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract indebtedness for borrowed money (including for future loans, credit or financing);
(x) any Contract, the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(vi) a mortgage, pledge, security agreement, deed of trust or other instrument creating an encumbrance upon any assets of the Company that are material, individually or in the aggregate, to the Company’s business; (vii) a contract for the sale of any of the Company’s material assets after the date hereof; (viii) a contract or instrument providing for indemnification by the Company of any Person with respect to liabilities arising out of any business activities of the Company; (ix) an agreement to pay any person a severance payment or bonus in excess of $25,000 in connection with the transactions contemplated in this Agreement; (x) an agreement pursuant to which the Company has licensed from any third party any patent, trademark registration, service m▇▇▇ registration, trade name or copyright registration, other than any nonexclusive license that is available to the public generally, including the Research, Development and Commercialization Agreement between the Company and H▇▇▇▇▇▇-▇▇ ▇▇▇▇▇ Ltd, and H▇▇▇▇▇▇▇-▇▇ ▇▇▇▇▇ Inc., dated April 20, 2005; (xi) an agreement creating any partnership or joint venture between the Company and any third party or providing for any sharing of material profits or losses by the Company with any third party; (xii) each Purchased Contract set forth an agreement granting exclusive rights to any third party to any patents, trademark registrations, service m▇▇▇ registrations, trade names or copyright registrations owned by the Company; (xiii) an agreement that if prematurely terminated, would have a Material Adverse Effect on Schedule 4.11(a)(xii).
the Company; or (bxiv) Except a contract other than as set forth on Schedule 4.11(b) and other than with respect above to which the Company is a party or by which it or any of its assets or businesses is bound or subject that is material to the 787 Supply Agreement: (i) each Material Contract is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller and, to Seller’s Knowledge, business of the other party or parties thereto and is enforceable in accordance with its termsCompany, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generallytaken as a whole.
(c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 1 contract
Sources: Merger Agreement (Entremed Inc)
Contracts. (ai) For purposes of this AgreementExcept for Contracts that are filed (in their entirety, each including all annexes, exhibits, amendments and supplements thereto) as an exhibit to a Filed Company SEC Document, Section 4.1(i) of the following shall constitute Company Disclosure Schedule contains a “Material Contract”complete and correct list, as of the Agreement Date, of each Contract described below in this Section 4.1(i) under which the Company Entities have any current or future rights, responsibilities, obligations or liabilities (in each case, whether contingent or otherwise) or to which any of their respective properties or assets is subject, in each case as of the Agreement Date:
(iA) each Purchased Contract relating that would be required to be filed by the employment (whether on Company as a full-time, part-time, consulting or other basis“material contract” pursuant to Item 610(b)(10) of Regulation S-K under the Securities Act;
(B) each Contract to which any Employee Company Entity is a party that grants any right of first refusal or first offer to any Person or restricts the Businessability of any Company Entity to (A) compete with any Person in any area, (B) engage in any activity or business in connection with the current business lines of any Company Entity or (C) own, operate, sell, transfer, pledge or otherwise dispose of any material amount of assets or businesses;
(C) each joint venture arrangement, and any “stay pay,” termination, change of control each strategic alliance or other Contract pursuant to which Seller is partnership agreement or may become obligated to make any severance, termination similar arrangement that involves future expenditures or relocation payment to any current or former Employee of receipts by the Business who earns or earned an annual base salary Company Entities of more than $60,000 500,000 in any one year-period that cannot be terminated on less than 90 days notice without material payment or for which the cost of such severance, termination or relocation payment would exceed $30,000penalty;
(iiD) except to each Contract with the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct top 15 customers of the Business Company Entities (other than nondisclosure agreementslisted by remaining contract value) and each Contract with the top 15 suppliers or subcontractors of the Company Entities (listed by cost);
(iiiE) each Purchased Contract creating (other than a Government Contract) that involves future expenditures or relating to receipts by the Company Entities of more than $500,000 in any partnership, limited liability company one year-period that cannot be terminated on less than 90 days notice without material payment or joint venture or similar venture or arrangementpenalty;
(ivF) each Purchased acquisition or divestiture Contract with any customer that contains representations, covenants, indemnities or production supplier that involvesother obligations (including “earn-out” or other contingent payment obligations) that, individually or in the aggregate, obligate the Company to make payments, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year)result in payments, the payment or expenditure in excess of $2,000,000500,000;
(vG) each Purchased Contract not with customers or production suppliers plan that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involvingwill increase, or reasonably anticipated accelerate the vesting of, the benefits to involveany party by the occurrence of any of the Transactions, or will calculate the value of any of the benefits to any party on the basis of any of the Transactions;
(AH) each lease or sublease of real property under which the payment Company Entities is a landlord, sublessor, tenant or delivery by or to the Business of cash or other consideration in an amount or having a value subtenant involving annual rental payments in excess of $250,000 in the aggregate in 150,000;
(I) each Contract relating to indebtedness for borrowed money or any calendar year; (B) the performance by or for the Business of services in an amount or having a value financial guaranty in excess of $250,000 500,000 individually or in the aggregate in any calendar year; (other than surety or (C) the sale, lease performance bonds or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 similar arrangements entered into in the aggregate in any calendar yearordinary course of business);
(viJ) each Seller material license or Contract imposing relating to any materialCompany Entity Intellectual Property, explicit restriction other than licenses to the government pursuant to a Government Contract and commercially available, off-the-shelf, “shrink-wrap”, click-through or other generally available software;
(K) each Contract between a Company Entity, on the right one hand, and any officer, director or ability Affiliate of a Company Entity, on the other hand, including any Contract pursuant to which any Company Entity has an obligation to indemnify such officer, director or Affiliate;
(AL) the Business to each Contract that is a material settlement, conciliation or similar agreement (1) compete withthat is with any Governmental Entity, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in pursuant to which a Company Entity is obligated after the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset Agreement to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other pay consideration in excess of $100,000 per annum250,000, or (3) that would otherwise materially limit the operation of a Company Entity as currently operated;
(viiiM) any other Contract which would prohibit or materially delay the consummation of the Transactions; and
(N) except for the Contracts described above, each Purchased material Contract to which the Company Entities is a party not made in the ordinary course of business consistent with past practice that involves future expenditures or receipts by the Company Entities of more than $500,000.
(ii) With respect to each Contract, open bid or proposal between a Company Entity and any (A) any Affiliate of Seller (other than any employee of Seller) Governmental Entity or (B) third party relating to a Contract between such third party and any Governmental Entity (each contract described in (A) and (B), a “Government Contract”), (1) the Company Entity has complied in all material respects with all terms and conditions of such Government Contract, including all clauses, provisions and requirements incorporated expressly by reference, or by operation of law therein; (2) the Company Entity has complied in all material respects with all requirements of all applicable Laws, or agreements pertaining to such Government Contract; (3) to the Knowledge of the Persons identified on Schedule 4.11(a)(viiiCompany all representations and certifications executed, acknowledged or set forth in or pertaining to such Government Contract and made or delivered by the Company were complete and correct as of their effective dates and the Company has complied with all such representations and certifications; (4) (i) to the Knowledge of the Company all cost and pricing data submitted in connection with each Government Contract, or modification thereof, was current, accurate, and complete in all material respects when the price thereof was negotiated and (ii) none of the Government Contracts are or were negotiated in violation of any “truth-in-negotiations” or “defective-pricing” laws, rules, or regulations to which it is subject; (5) neither the United States government nor any prime contractor, subcontractor or other Person has notified any Company Entity that the Company Entity is in material breach or material violation of any Laws, certification, representation, clause, provision or requirement pertaining to such Government Contract; (6) no Company Entity has received any written notice of termination for convenience, notice of termination for default, cure notice or show cause notice pertaining to such Government Contract; (7) no Company Entity, and to the Knowledge of the Company, no officer or director of a Company Entity has been debarred or suspended from doing business with any Governmental Entity, and no circumstances exist that would warrant the institution of debarment or suspension proceedings against a Company Entity, or to the Knowledge of the Company, against an officer or director; (8) all of the Company Entities’ internal systems for cost tracking and time charging are designed to provide reasonable assurances to the extent required to comply with their obligations under Government Contracts and the Company Entities have complied with applicable requirements for cost accounting and billing; (9) other than in the ordinary course of business, no cost incurred by any Company Entity pertaining to a Government Contract has been questioned or challenged, is, to the Company’s Knowledge, the subject of any audit or investigation or has been disallowed by any Governmental Entity; (10) no payments due to any Company Entity pertaining to such Government Contract have been withheld or set off other than for customary retainage, nor has any written claim been made to withhold or set off money, and the Company Entity is entitled to all progress or other payments received with respect thereto; (11) the Company Entities have no Knowledge of any irregularities, misstatements, omissions, or other facts or circumstances relating to any Government Contract that have led to or have a reasonable likelihood of leading to a Governmental Entity having or claiming rights in any intellectual property or technical data (as defined by the U.S. government);; (12) the Company Entities have properly marked the proprietary information they provide to Governmental Entities and reported subject inventions; and (13) no negative determinations of responsibility have been issued against a Company Entity in connection with any Government Contract. The Company is in compliance with all statutory and regulatory requirements under the Arms Export Act (22 U.S.C. 2778), the International Traffic in Arms Regulations (22 C.F.R. Section 120 et. seq.), the Export Administration Regulations (15 C.F.R. Section 730 et. seq.) and associated executive orders and applicable laws implemented by the Office of Foreign Assets Controls, United States Department of Treasury.
(ixiii) The Company has made available to Parent a materially complete and correct copy of each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or of the Contracts referred to in Section 4.1(i) and Section 4.1(i)(ii). Each Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing);
(x) any Contract, the primary subject matter of which Company Entities that is confidentiality, nondisclosure or similar agreement with respect required to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xii) each Purchased Contract be set forth on Section 4.1(i) of the Company Disclosure Schedule 4.11(a)(xii).
(b) Except or required to be filed as set forth on Schedule 4.11(b) and other than with respect an exhibit to the 787 Supply Agreement: Filed Company SEC Documents (ia “Material Contract”) each Material Contract is in full force and effect (except for those Contracts that have expired or have been terminated in accordance with their terms) and (ii) each Material Contract constitutes is a legal, validvalid and binding agreement of the Company Entities, binding and enforceable obligation of Seller as the case may be, and, to Seller’s Knowledgethe Knowledge of the Company, of the each other party or parties thereto and is thereto, enforceable against the Company Entities, as the case may be, and, to the Knowledge of the Company, each other party thereto, in each case, in accordance with its terms, subject only . Each of the Company Entities has performed or is performing all obligations required to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is be performed by it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, Material Contracts and no fact, circumstance or condition exists, that is not (with or without notice or lapse of time time, or both) in material breach or default thereunder, and has not waived or failed to enforce any material rights or benefits thereunder, and, to the Knowledge of the Company, no other party to any of the Material Contracts is (iwith or without notice or lapse of time, or both) resulted in a material violation breach or breach default thereunder, and there has occurred no event giving to others (with or without notice or lapse of time, or both) any provision right of termination, amendment or cancellation of any Material Contract by Seller; (ii) given or any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contractlicense thereunder.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 1 contract
Contracts. (a) For purposes Section 4.16 of the Disclosure Letter sets forth a list of all written agreements of the Company or its Subsidiaries (other than contracts or leases for the sale in the ordinary course of business of the Company's services or products) that are currently in effect and that are (i) leases for real property with annual base rental costs of at least $150,000 per year; (ii) personal property leases, sales contracts and other agreements with respect to any personal property of the Company or its Subsidiaries which provide for the receipt or expenditure by the Company or its Subsidiaries, after the date of this Agreement, each of the following shall constitute a “Material Contract”:
(i) each Purchased Contract relating to the employment (whether on a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000;
(ii) except to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements);
250,000; (iii) each Purchased Contract creating contracts or relating to any partnership, limited liability company commitments for capital expenditures or joint venture or similar venture or arrangement;
(iv) each Purchased Contract with any customer or production supplier that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value acquisitions in excess of $250,000 in the aggregate in any calendar yearfor one project or set of related projects; (Biv) guarantees of obligations of Persons that are not Affiliates of the performance Company or its Subsidiaries; (v) agreements (including non-competition agreements) which restrict the kinds of businesses in which the Company or its Subsidiaries may engage or the geographical area in which any of them may conduct their business; (vi) indentures, mortgages, loan agreements or other agreements relating to the borrowing of money by or for the Business of services in Company involving an amount or having a value in excess of $250,000 in the aggregate in 100,000; (vii) material licenses, agreements, assignments or contracts (whether as licensor or licensee, assignor or assignee) relating to any calendar yearProprietary Rights; (viii) brokerage or finder's agreements; (Cix) the salejoint venture agreements or partnership agreements; (x) stock purchase agreements, lease asset purchase agreements or other disposition by acquisition or to divestiture agreements executed within the Business of goodslast five years, suppliesin each case, products and/or other Assets in involving an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person500,000; or (4xi) developrelated to employment, useincluding without limitation the payment of severance or bonuses, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, all items listed in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any Section 4.16 of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing);
(x) any Contract, the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect Disclosure Letter being hereinafter referred to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xiias "Contracts").
(b) Except as set forth on Schedule 4.11(b) and other than with respect to the 787 Supply Agreement: (i) each Material Contract is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller and, to Seller’s Knowledge, Each of the other party or parties thereto Contracts is valid and is enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvencyinsolvency and similar laws affecting creditors' rights and remedies generally, reorganization and moratorium Laws subject to general principles of equity, whether applied in a court of law or equity. The Company, and to the knowledge of the Company each of the other Laws parties thereto, are in compliance with the provisions of general application affecting enforcement each of creditors’ rights generallythe Contracts, except where such noncompliance would neither give rise to a right of termination in such other parties nor would result in the payment of damages by the Company in excess of $150,000 under any individual Contract or $500,000 in the aggregate for all Contracts, the Company, and to the knowledge of the Company each of the other parties thereto, is not in default thereunder, except where such default would neither give rise to a right of termination in such other parties nor would result in the payment of damages by the Company in excess of $150,000 under any individual Contract or $500,000 in the aggregate for all Contracts; and no event has occurred which would constitute a default thereunder, except where such event would neither give rise to a right of termination in another party nor would result in the payment of damages by the Company in excess of $150,000 under any individual Contract or $500,000 in the aggregate for all Contracts.
(c) Except To the Company's knowledge, as set forth on Schedule 4.11(c) and of the date hereof none of the other than with respect parties to any such Contracts has given written notice to the 787 Supply Agreement: (i) Seller has not violated Company or breached in any material respect a Subsidiary that it intends to terminate or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim materially alter the provisions of such default Contracts either as a result of the transactions contemplated hereby or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both)otherwise.
(d) Other than under Neither the 787 Supply AgreementCompany nor any Subsidiary has received written notice that it is in, no event nor has either the Company or development has occurreda Subsidiary given written notice of, and no factany default or claimed, circumstance purported or condition existsalleged default, that (or facts that, with or without notice or lapse of time time, or both, would constitute a default (or give rise to a termination right) has (i) resulted in a material violation or breach on the part of any provision party in the performance of any Material Contract by Seller; (ii) given any Person the right obligation to declare a material default or exercise any remedy for breach be performed under any Material Contract; (iii) given of the Contracts, except for defaults that would result in the payment of damages by the Company in an amount less than $150,000 under any Person individual Contract or $500,000 in the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contractaggregate for all Contracts.
(e) Schedule 4.11(e) provides a list True and complete copies of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (Contracts, including any oral or unwritten amendments thereto, have been delivered to Purchaser (other than those Contracts and amendments that are included in the SEC Documents), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 1 contract
Contracts. (a) For purposes Excluding the Terminated Contracts and any Benefit Plans, Schedule 4.08 sets forth a list as of the date of this Agreement, each Agreement of the following shall constitute Contracts to which either Company is a party, by which the Purchased Assets may be bound (collectively, the “Material ContractContracts”:):
(i) each Purchased Contract relating to Contracts for the employment (whether on a full-timefuture purchase, part-time, consulting exchange or other basis) sale of any Employee of the Business, and any “stay pay,” termination, change of control electric power or other Contract pursuant to which Seller is ancillary services or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000fuel;
(ii) except to Contracts for the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner future transmission of electric power or primarily to fuel or for the acquisition, use, transfer, development, ownership, sharing or license storage of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)fuel;
(iii) each Purchased Contract creating or relating to any partnership, limited liability company or interconnection and/or facilities joint venture or similar venture or arrangementuse Contracts;
(iv) each Purchased Contract with any customer or production supplier that involves, or would reasonably be expected to involve other than Contracts of the nature addressed by Section 4.08(a)(i) — (assuming delivery of eighty-four (84) shipsets per yearii), Contracts (A) for the payment sale of any asset of a Company or expenditure (B) that grant a right or option to purchase any asset of a Company, other than in excess each case Contracts entered into in the ordinary course of business consistent with past practices relating to assets with a value of less than $2,000,000500,000 individually or $2,000,000 in the aggregate;
(v) each Purchased Contract not with customers other than Contracts of the nature addressed by Section 4.08(a)(i) — (ii), Contracts for the future provision of goods or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value services requiring payments in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or 1,000,000 for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar yeareach individual Contract;
(vi) each Seller Contract imposing Contracts under which a Company has created, incurred, assumed or guaranteed any materialoutstanding indebtedness for borrowed money, explicit restriction on the right any capitalized lease obligation or ability of (A) the Business to (1) compete withany other Indebtedness, or solicit the services under which such Company has imposed a security interest or employment ofCompany Lien on any of its assets, any other Person; (2) sell any product tangible or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conductedintangible;
(vii) each Purchased Contract under which outstanding agreements of guaranty, surety or indemnification, direct or indirect, by a Company, or by Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess Non-Company Affiliate for the benefit of $100,000 per annuma Company;
(viii) each Purchased Contract Contracts with (A) Seller or any Non-Company Affiliate relating to the future provision of Seller (other than any employee of Seller) goods or (B) any of the Persons identified on Schedule 4.11(a)(viii)services;
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness employment and consulting Contracts providing annual compensation in excess of Seller secured by $150,000 or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing)severance benefits in excess of $150,000;
(x) any Contract, the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Businesscollective bargaining agreement;
(xi) each Purchased Contract any settlement, conciliation or similar Contract, the performance of which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value will involve payment after the execution of this Agreement of consideration in excess of $50,000; and1,000,000;
(xii) each Purchased any Contract set forth on Schedule 4.11(a)(xii).under which a Company has advanced or loaned any amount to any of its directors, officers, and employees outside the ordinary course of business;
(bxiii) Except as set forth on Schedule 4.11(b) and outstanding futures, swap, collar, put, call, floor, cap, option or other than with respect Contracts that are intended to benefit from or reduce or eliminate the 787 Supply Agreement: (i) each Material Contract is risk of fluctuations in full force and effect and (ii) each Material Contract constitutes a legalthe price of commodities, validincluding electric power, binding and enforceable obligation of Seller and, to Seller’s Knowledge, of the other party fuel or parties thereto and is enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.securities;
(cxiv) Except as set forth on Schedule 4.11(c) and other than with respect Contracts that purport to the 787 Supply Agreement: (i) Seller has not violated or breached limit a Company’s freedom to compete in any material respect line of business or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).geographic area;
(dxv) Other than under the 787 Supply Agreementpartnership, no event joint venture or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.limited liability company agreements;
(exvi) Schedule 4.11(e) provides Contracts conveying, granting, leasing or assigning an interest in real property to a list of all written Material Contracts Company (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments theretothe Leases), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.;
Appears in 1 contract
Sources: Purchase and Sale Agreement (US Power Generating CO)
Contracts. (a) For purposes of this Agreement, each Section 3.14(a) of the Disclosure Schedule lists the following shall constitute Contracts (each a “Material Contract”) to which any of the Group Companies is a party:
(i) each Purchased Except for Employee Benefit Plans, any Contract relating (or group of related Contracts) for the lease of personal property from or to the employment (whether on a full-time, part-time, consulting or other basis) third parties involving payments by any Group Company in excess of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000150,000 annually;
(ii) except to the extent included elsewhere in this Section 4.11(aany Contract (or group of related Contracts), each Purchased Contract relating in which any Group Company has granted “most favored nation” pricing or has agreed to purchase a material manner minimum quantity of goods or primarily services or has agreed to the acquisition, use, transfer, development, ownership, sharing purchase goods or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)services exclusively from a certain party;
(iii) each Purchased any Contract creating with a Significant Customer (other than a Significant Customer that is not one of the top 20 customers or clients by revenue of the Group Companies during the last full fiscal year and the interim period through the Most Recent Balance Sheet Date) relating to any partnership, limited liability company the sale or joint venture license of the Customer Offerings (other than purchase orders and similar confirmatory documents or similar venture other ancillary agreements not specific to the sale or arrangementlicense of the Group Companies’ products);
(iv) each Purchased any Contract with any customer a Significant Supplier relating to the supply of goods and services to the Company (and not including ancillary agreements not specific to the supply of goods or production supplier that involves, or would reasonably be expected services to involve (assuming delivery of eighty-four (84) shipsets per yearthe Company), the payment or expenditure in excess of $2,000,000;
(v) each Purchased any Contract not with customers providing for any royalty, milestone or production suppliers that may not be terminated (without penalty) similar payments by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar yearGroup Company;
(vi) each Seller any Contract imposing any materialconcerning the establishment or operation of a partnership, explicit restriction on the right joint venture or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conductedlimited liability company;
(vii) each Purchased any Contract (or group of related Contracts) under which Seller any Group Company has created, incurred, assumed or guaranteed (Aor may create, incur, assume or guarantee) leases Indebtedness (including capitalized lease obligations) or subleases under which it has imposed (or may impose) a Lien on any real property of its assets, tangible or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annumintangible;
(viii) each Purchased any Contract with (A) for the disposition of any Affiliate material portion of Seller the assets or business of any of the Group Companies or any Contract for the acquisition of any material assets or business of any other Person (other than any employee purchases of Seller) or (B) any supplies in the Ordinary Course of the Persons identified on Schedule 4.11(a)(viiiBusiness);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or any Contract in which any Group Company is bound by noncompetition obligations (other evidence of, or Contract for, Indebtedness than Leases of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financingProperties);
(x) any consulting Contract that provides annual compensation in excess of $350,000 or event based compensation in excess of $350,000 or any employment agreement, other Contract, or other Employee Benefit Plan that includes provisions for the primary subject matter payment of which is confidentialityseverance, nondisclosure change in control, or similar retention agreement with respect to confidentiality arrangements executed by that grants any retention, change of control, severance or on behalf of Seller with respect to termination pay or benefits, other than severance or termination pay or benefits not exceeding statutory severance or notice obligations applicable in the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Businessrelevant jurisdiction;
(xi) each Purchased any settlement agreement or settlement-related agreement (including any agreement in connection with which any employment-related claim is settled) that has any outstanding payment or other material obligation by the Company;
(xii) any Contract, other than Employee Benefit Plans, involving any current or former officer, director or equity holder of any Group Company or any Affiliate thereof (other than employment agreements);
(xiii) any Contract, other than Leases of Properties, under which the consequences of a default or termination would reasonably be expected to have a Company Material Adverse Effect;
(xiv) any agency, distributor, sales representative, franchise or similar Contracts to which any Group Company is a party or by which any Group Company;
(xv) any Contract which createscontains any provisions requiring any Group Company to indemnify any other party (excluding indemnities contained in Leases of Properties or in Contracts for the purchase, sale or may createlicense of products, an Encumbrance on services or supplies entered into in the Ordinary Course of Business);
(xvi) any Purchased Asset Contract that could reasonably be expected to have the effect of prohibiting or impairing the conduct of the business of any Group Company or the Buyer or any of its Affiliates as currently conducted and as currently proposed to be conducted;
(xvii) any Contract listed or required to be listed in an amount Section 3.13(i) of the Disclosure Schedule;
(xviii) any Contract or assignment listed or required to be listed in Section 3.13(j) of the Disclosure Schedule;
(xix) any Contract with any Governmental Entity or any subcontract with a value in excess of $50,000higher-tier government contractor; and
(xiixx) each Purchased any other Contract set forth on Schedule 4.11(a)(xii)(or group of related Contracts) either involving more than $150,000 or not entered into in the Ordinary Course of Business, other than (A) Leases of Properties and (B) Employee Benefit Plans.
(b) Except The Group Companies have made available to the Buyer a complete and accurate copy of each Material Contract (as set forth on Schedule 4.11(b) and other than with amended to date). With respect to the 787 Supply Agreementeach Material Contract: (i) each the Material Contract is legal, valid, binding and, subject to the Enforceability Exceptions, enforceable and in full force and effect against the applicable Group Company that is the party thereto, as applicable, and, to the Companies’ Knowledge, against each other party thereto; and (ii) each except as set forth in Section 3.14(b) of the Disclosure Schedule, neither the applicable Group Company nor, to the Knowledge of the Companies, any other party, is, in any material respect, in breach or violation of, or default under, any such Material Contract, and no event has occurred, is pending or, to the Knowledge of the Companies, is threatened, which, after the giving of notice, with lapse of time, or otherwise, would constitute any such breach or default by such Group Company or, to the Knowledge of the Companies, any other party under such Material Contract. Each Material Contract constitutes a will continue to be legal, valid, binding and enforceable obligation of Seller and, to Seller’s Knowledge, of and in full force and effect immediately following the other party or parties thereto and is enforceable Closing in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except the terms thereof as set forth on Schedule 4.11(c) and other than with respect in effect immediately prior to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both)Closing.
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 1 contract
Contracts. (a) For purposes of this AgreementSchedule 4.10(a) lists all agreements, each contracts, purchase orders and commitments of the following shall constitute types to which any Seller is a “Material Contract”:
(i) each party or by which any Seller or any of its Purchased Contract relating to the employment (whether on a full-time, part-time, consulting or other basis) of any Employee Assets is bound as of the Business, and any “stay pay,” termination, change date of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000;
(ii) except to the extent included elsewhere in this Section 4.11(a), each Purchased Contract Agreement relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements);
(iii) each Purchased Contract creating or relating to any partnership, limited liability company or joint venture or similar venture or arrangement;
(iv) each Purchased Contract with any customer or production supplier that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure Leases, IP License Agreements and labor or employment-related agreements); , which are provided for in Sections 4.9, 4.11, 4.13 or 4.14, respectively) (Bcollectively, the "Contracts"):
(i) Buyer to own and operate loan agreements, notes, mortgages, indentures, security agreements, or guarantees of the 787 Program as currently conductedobligations of a third party or Affiliate;
(viiii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, joint venture and each Purchased Contract for borrowed money (including for future loans, credit or financing);
(x) any Contract, the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation limited partnership agreements relating to the Business;
(xiiii) contracts and other instruments and arrangements for the purchase by any Seller of materials, supplies, products or services, and contracts, agreements and other instruments in connection with the Business or arrangements for the sale or provision by any Seller of materials, supplies, products or services in connection with the Business (including, distribution and marketing agreements), in each case, (A) not terminable on notice of 120 days or less without penalty, and (B) under which the amount that would reasonably be expected to be paid or received by any Seller exceeds $100,000 per annum or $1,000,000 in the aggregate;
(iv) contracts prohibiting or restricting any Seller's use of the Purchased Contract Assets or conduct of the Business to compete with any Person, engage in any business or operate in any geographical area;
(v) stock purchase agreements, asset purchase agreements and other acquisition or divestiture agreements relating to the acquisition, lease or disposition by any Seller of any of the Purchased Assets (other than in the ordinary course of business), in each case (A) which createswas entered into by any Seller after January 1, 1999, or may create, an Encumbrance on (B) under which any Purchased Asset Seller has any ongoing indemnification or other material obligations;
(vi) any contract entered into other than in an amount or with a value the ordinary course of business involving aggregate payments in excess of $50,000100,000, to be made by or to any Seller in connection with the Business after the date of this Agreement;
(vii) contracts of the Sellers pertaining to the Business or the Purchased Assets with any Affiliate of the Sellers or any of their officers, directors, shareholders or members;
(viii) contracts of any Seller with any sales representatives or distributors who perform services in connection with the Business;
(ix) settlement agreements to which any Seller is a party entered into in connection with the conduct of the Business or the ownership of the Purchased Assets;
(x) guaranteed sale, consignment or volume rebate contracts; and
(xiixi) each Purchased contracts that are or could be material to the Business.
(b) The Sellers have delivered to the Purchaser complete and correct copies of the Contracts as in effect on the date of this Agreement.
(c) Each Contract set forth is a legal, binding and enforceable obligation, and no Seller is, and to the Sellers' Knowledge, no other party to any Contract is, in default in any material respect under any such Contract, other than as disclosed on Schedule 4.11(a)(xii4.10(c).
(bd) No condition exists which with notice or lapse of time or both would constitute a material default by any Seller under its respective Contracts.
(e) Except as set forth on Schedule 4.11(b) and other than with respect to 4.10(e), the 787 Supply Agreement: (i) each Material Contract is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller and, to Seller’s Knowledge, consummation of the other party transactions contemplated hereby will not result in the loss or parties thereto and is enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt impairment of any written Claim of such default rights or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than benefits under the 787 Supply Agreement, no event Contracts or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in give rise to a material violation or breach right of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right party thereto to cancel, terminate or modify, amend, accelerate or terminate, nor will such consummation require the Consent of any third party in respect of any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 1 contract
Contracts. (a) For purposes Section 2.14 of the Disclosure Schedule lists the following agreements (written or oral) to which the Company is a party as of the date of this Agreement, each of the following shall constitute a “Material Contract”:
(i) each Purchased Contract relating any agreement (or group of related agreements) for the lease of personal property from or to the employment (whether on third parties providing for lease payments in excess of $10,000 per annum or having a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more remaining term longer than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000three months;
(ii) except any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, (B) which involves more than the sum of $10,000, or (C) in which the Company has granted manufacturing rights, "most favored nation" pricing provisions or exclusive marketing or distribution rights relating to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in any products or territory or has agreed to purchase a material manner minimum quantity of goods or primarily services or has agreed to the acquisition, use, transfer, development, ownership, sharing purchase goods or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)services exclusively from a certain party;
(iii) each Purchased Contract creating any agreement concerning the establishment or relating to any operation of a partnership, limited liability company or joint venture or similar venture or arrangementlimited liability company;
(iv) each Purchased Contract with any customer agreement (or production supplier that involvesgroup of related agreements) under which the Company has created, incurred, assumed or would reasonably be expected to involve guaranteed (assuming delivery or may create, incur, assume or guarantee) currently outstanding indebtedness (including capitalized lease obligations) involving more than $10,000 or under which it has imposed (or may impose) a Security Interest on any of eighty-four (84) shipsets per year)its assets, the payment tangible or expenditure in excess of $2,000,000intangible;
(v) each Purchased Contract not with customers any agreement for the disposition of any significant portion of the assets or production suppliers that may not be terminated business of the Company (without penalty) by Seller within thirty (30) days after the delivery other than sales of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 products in the aggregate in Ordinary Course of Business) or any calendar year; (B) the performance by or agreement for the Business acquisition of services in an amount the assets or having a value in excess business of $250,000 any other entity (other than purchases of inventory or components in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business Ordinary Course of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar yearBusiness);
(vi) each Seller Contract imposing any material, explicit restriction on agreement concerning confidentiality other than those agreements entered into with current customers or suppliers of the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere Company in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conductedOrdinary Course of Business;
(vii) each Purchased Contract under which Seller (A) leases any employment or subleases any real property or (B) leases or subleases any buildingsconsulting agreement, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annumthan those that are terminable at will and without penalty by the Company;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than agreement between the Company and any employee of Seller) current or (B) any former manager of the Persons identified on Schedule 4.11(a)(viii)Company, Company Member or an Affiliate thereof;
(ix) each noteany agreement which contains any provisions requiring the Company to indemnify any other party (excluding indemnities contained in agreements for the purchase, debenture, bond, indenture, guarantee, loan, credit sale or financing agreement, instrument or other evidence of, or Contract for, Indebtedness license of Seller secured by or providing Encumbrances on products entered into in the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financingOrdinary Course of Business);
(x) any Contractagreement under which the Company is restricted from selling, licensing or otherwise distributing any of its technology or products, or providing services to, customers or potential customers or any class of customers, in any geographic area, during any period of time or any segment of the primary subject matter market or line of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;business; and
(xi) each Purchased Contract which creates, any other agreement (or may create, an Encumbrance on any Purchased Asset group of related agreements) either involving the expenditure of more than $10,000 or not entered into in an amount or with a value in excess the Ordinary Course of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii)Business.
(b) Except as set forth on Schedule 4.11(b) The Company has delivered to the Buyer a complete and other than with accurate copy of each agreement listed in Section 2.13 or Section 2.14 of the Disclosure Schedule. With respect to the 787 Supply Agreementeach agreement so listed: (i) each Material Contract the agreement is a valid and binding agreement of the Company, and is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller and, to Seller’s Knowledge, of the other party or parties thereto and is enforceable in accordance with its termsagainst the Company, subject only to applicable except as limited by bankruptcy, insolvency, reorganization moratorium, or other similar laws affecting or relating to creditors' rights generally and moratorium Laws and other Laws general principles of general application affecting enforcement of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breachequity; and (ii) neither the Company nor, to the Knowledge knowledge of Sellerthe Company, no any other Person has violated party, is in breach or breached in any material respectviolation of, or committed any material default under, any Material Contract (in each casesuch agreement, with or without notice or lapse and, to the knowledge of time or both).
(d) Other than under the 787 Supply AgreementCompany, no event or development has occurred, and no factis pending or is threatened, circumstance or condition existswhich, that (after the giving of notice, with or without notice or lapse of time time, or both) has (i) resulted in otherwise, would constitute a material violation breach or breach default by the Company or, to the knowledge of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respectCompany, any Material Contractother party under such agreement.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 1 contract
Sources: Merger Agreement (Unica Corp)
Contracts. (a) For purposes of this Agreement, each Section 2.15(a) of the Disclosure Schedule lists the following shall constitute agreements (other than any Employee Benefit Plan listed in Section 2.22(a) of the Disclosure Schedule) to which the Company or any Subsidiary is a party (each a “Material Contract”:):
(i) any agreement (or group of related agreements) for the lease of personal property from or to third parties in each Purchased Contract relating to the employment (whether on a full-timecase, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of involves more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,00020,000 on an annual basis;
(ii) except any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, (B) which involves more than the sum of $50,000 or (C) in which the Company or any Subsidiary has granted manufacturing rights, “most favored nation” pricing provisions or marketing or distribution rights relating to the extent included elsewhere in this Section 4.11(a)any services, each Purchased Contract relating in products or territory or has agreed to purchase a material manner minimum quantity of goods or primarily services or has agreed to the acquisition, use, transfer, development, ownership, sharing purchase goods or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)services exclusively from a certain party;
(iii) each Purchased Contract creating any agreement concerning the establishment or relating to any operation of a partnership, limited liability company or joint venture or similar venture or arrangementlimited liability company;
(iv) each Purchased Contract with any customer agreement (or production supplier that involvesgroup of related agreements) under which the Company or a Subsidiary has created, incurred, assumed or would reasonably be expected to involve guaranteed (assuming delivery or may create, incur, assume or guarantee) indebtedness for borrowed money (including capitalized lease obligations) or under which it has imposed (or may impose) a Security Interest on any of eighty-four (84) shipsets per year)its assets, the payment tangible or expenditure in excess of $2,000,000intangible;
(v) each Purchased Contract not with customers any agreement for the disposition of any significant portion of the assets or production suppliers that may not be terminated business of the Company or any Subsidiary (without penalty) by Seller within thirty (30) days after the delivery other than sales of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 products in the aggregate in Ordinary Course of Business) or any calendar year; (B) the performance by or agreement for the Business acquisition of services in an amount the assets or having a value in excess business of $250,000 any other entity (other than purchases of inventory or components in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business Ordinary Course of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar yearBusiness);
(vi) each Seller Contract imposing any materialagreement concerning confidentiality, explicit restriction on the right noncompetition or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business non-solicitation (other than nondisclosure agreementsconfidentiality agreements with customers, prospective customers, employees or consultants of the Company or any Subsidiary set forth in the Company’s or the applicable Subsidiary’s standard terms and conditions of sale or standard form of employment agreement or consulting agreement, copies of which such standard terms and conditions have previously been made available to the Buyer); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller any employment agreement, consulting agreement, severance agreement (Aor agreement that includes provisions for the payment of severance) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenancesretention agreement, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annumeach case;
(viii) each Purchased Contract any settlement agreement or settlement-related agreement (including any agreement in connection with (A) which any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viiiemployment-related claim is settled);
(ix) each noteany agreement involving any current or former officer, debenture, bond, indenture, guarantee, loan, credit director or financing agreement, instrument stockholder of the Company or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing)an Affiliate thereof;
(x) any Contract, agreement under which the primary subject matter consequences of which is confidentiality, nondisclosure a default or similar agreement with respect termination would reasonably be expected to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Businesshave a Company Material Adverse Effect;
(xi) each Purchased Contract any agency, distributor, sales representative, franchise or similar agreements to which createsthe Company or any Subsidiary is a party or by which the Company or any Subsidiary is bound;
(xii) any agreement which contains any provisions requiring the Company or any Subsidiary to indemnify any other party (excluding indemnities contained in agreements for the purchase, sale or license of products or services entered into in the Ordinary Course of Business);
(xiii) any agreement that could reasonably be expected to have the effect of prohibiting or impairing the conduct of the business of the Company or any of its Subsidiaries or the Buyer or any of its subsidiaries as currently conducted and as currently proposed to be conducted;
(xiv) any agreement under which the Company or any Subsidiary is restricted from selling, licensing or otherwise distributing any of its technology or products, or may createproviding services to, customers or potential customers or any class of customers, in any geographic area, during any period of time or any segment of the market or line of business;
(xv) any agreement which would entitle any third party to receive a license or any other right to intellectual property of the Buyer or any of the Buyer’s Affiliates following the Closing;
(xvi) any collective bargaining agreement and any social plan which is in effect and not fully performed, to the extent applicable to the Company or any Subsidiary;
(xvii) any agreement which contains any provision which refers to a change of control of the Company or any Subsidiary;
(xviii) all contracts with, or that require the retention of or payment to, an Encumbrance on any Purchased Asset in an amount investment bank, broker, financial advisor, accountant, attorney or with a value in excess of $50,000other advisor; and
(xiixix) each Purchased Contract set forth on Schedule 4.11(a)(xii)any other agreement (or group of related agreements) either involving more than $100,000 or not entered into in the Ordinary Course of Business.
(b) Except The Company has made available to the Buyer a complete and accurate copy of each Contract (as set forth on Schedule 4.11(b) and other than with amended to date). With respect to the 787 Supply Agreementeach Contract: (i) each Material the Contract is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller and in full force and effect against the Company or the Subsidiary that is the party thereto and, to Sellerthe Company’s Knowledgeknowledge, of the against each other party thereto; (ii) the Contract will continue to be legal, valid, binding and enforceable and in full force and effect against the Company or parties the Subsidiary that is the party thereto and is enforceable and, to the Company’s knowledge, against each other party thereto immediately following the Closing in accordance with its termsthe terms thereof as in effect immediately prior to the Closing; and (iii) neither the Company, subject only any Subsidiary nor, to applicable bankruptcythe knowledge of the Company, insolvencyany other party, reorganization is in breach or violation of, or default under, any such Contract, and moratorium Laws and no event has occurred, is pending or, to the knowledge of the Company, is threatened, which, after the giving of notice, with lapse of time, or otherwise, would constitute a breach or default by the Company, any Subsidiary or, to the knowledge of the Company, any other Laws of general application affecting enforcement of creditors’ rights generallyparty under such Contract.
(c) Except as set forth on Neither the Company nor any Subsidiary is a party to any oral contract, agreement or other arrangement which, if reduced to written form, would be required to be listed in Section 2.15(a) of the Disclosure Schedule 4.11(c) and other than with respect under the terms of Section 2.15(a). Neither the Company nor any Subsidiary is a party to the 787 Supply Agreement: any written or oral arrangement (i) Seller has not violated to perform services or breached in any sell products which is expected to be performed at, or to result in, a material respect loss or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to for which the Knowledge of Seller, no other Person customer has violated already been billed or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both)paid that have not been fully accounted for on the Most Recent Balance Sheet.
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 1 contract
Contracts. (a) For purposes Section 2.15 of the Disclosure Schedule lists the following agreements (written or oral) to which the Company is a party as of the date of this Agreement, each of the following shall constitute a “Material Contract”:
(i) each Purchased Contract relating any agreement (or group of related agreements) for the lease of personal property from or to the employment (whether on third parties providing for lease payments in excess of $15,000 per annum or having a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more remaining term longer than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,00012 months;
(ii) except any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, (B) which involves more than the sum of $15,000, or (C) in which the Company has granted manufacturing rights, "most favored nation" pricing provisions or marketing or distribution rights relating to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in any products or territory or has agreed to purchase a material manner minimum quantity of goods or primarily services or has agreed to the acquisition, use, transfer, development, ownership, sharing purchase goods or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)services exclusively from a certain party;
(iii) each Purchased Contract creating any agreement concerning the establishment or relating to any operation of a partnership, limited liability company or joint venture or similar venture or arrangementlimited liability company;
(iv) each Purchased Contract with any customer agreement (or production supplier that involvesgroup of related agreements) under which it has created, incurred, assumed or would reasonably be expected to involve guaranteed (assuming delivery or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $15,000 or under which it has imposed (or may impose) a Security Interest on any of eighty-four (84) shipsets per year)its assets, the payment tangible or expenditure in excess of $2,000,000intangible;
(v) each Purchased Contract not with customers any agreement for the disposition of any significant portion of the assets or production suppliers that may not be terminated business of the Company (without penalty) by Seller within thirty (30) days after the delivery other than sales of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 products in the aggregate in Ordinary Course of Business) or any calendar year; (B) the performance by or agreement for the Business acquisition of services in an amount the assets or having a value in excess business of $250,000 any other entity (other than purchases of inventory or components in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business Ordinary Course of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar yearBusiness);
(vi) each Seller Contract imposing any material, explicit restriction on the right agreement concerning confidentiality or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conductednoncompetition;
(vii) each Purchased Contract under which Seller (A) leases any employment or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annumconsulting agreement;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than agreement involving any employee of Seller) current or (B) any former officer, director or stockholder of the Persons identified on Schedule 4.11(a)(viii)Company or an Affiliate thereof;
(ix) each noteany agreement which contains any provisions requiring the Company to indemnify any other party (excluding indemnities contained in agreements for the purchase, debenture, bond, indenture, guarantee, loan, credit sale or financing agreement, instrument or other evidence of, or Contract for, Indebtedness license of Seller secured by or providing Encumbrances on products entered into in the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financingOrdinary Course of Business);; and
(x) any Contract, other agreement (or group of related agreements) either involving more than $15,000 or not entered into in the primary subject matter Ordinary Course of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii).
(b) Except as set forth on Schedule 4.11(b) The Company has delivered to the Buyer a complete and other than with accurate copy of each agreement listed in Section 2.13 or Section 2.15 of the Disclosure Schedule. With respect to the 787 Supply Agreementeach agreement so listed: (i) each Material Contract the agreement is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller andand in full force and effect; (ii) the agreement will continue to be legal, to Seller’s Knowledgevalid, of binding and enforceable and in full force and effect immediately following the other party or parties thereto and is enforceable Closing in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except the terms thereof as set forth on Schedule 4.11(c) and other than with respect in effect immediately prior to the 787 Supply Agreement: Closing; and (iiii) Seller has not violated neither the Company nor, to the knowledge of the Company, any other party, is in breach or breached in any material respect violation of, or committed any material default under, any Material Contract (in each casesuch agreement, with or without notice or lapse of time or both)and, nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply AgreementCompany, no event or development has occurred, and no factis pending or, circumstance or condition existsis threatened, that (which, after the giving of notice, with or without notice or lapse of time time, or both) has (i) resulted in otherwise, would constitute a material violation breach or breach of default by the Company or any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach other party under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contractsuch agreement.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 1 contract
Contracts. (a) For purposes of this Agreement, each Section 2.10 of the Disclosure Schedule lists the following shall constitute a “Material Contract”arrangements (including without limitation written and oral agreements) of the Seller:
(i) each Purchased Contract relating any arrangement (or group of related written arrangements) for the lease of personal property from or to the employment (whether on a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000third parties;
(ii) except any arrangement (or group of related written arrangements) for the purchase, sale, license, supply or manufacture of raw materials, commodities, supplies, products or other personal property or for the furnishing or receipt of services (A) which calls for performance over a period of more than six months, (B) which involves more than the sum of $25,000 or (C) in which the Seller has granted manufacturing rights, "most favored nation" pricing provisions or marketing or distribution rights relating to any products or territory or has agreed to purchase a minimum quantity of goods or services, agreed to make a minimum payment or has agreed to purchase goods or services exclusively from a certain party; including without limitation any agreement under which Seller sublicenses software used in conjunction with the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in Software or any agreement under which Seller has licensed a material manner third party to distribute or primarily to otherwise sublicense the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements);Software.
(iii) each Purchased Contract creating any arrangement (or relating to group of related written arrangements) under which the Seller has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) or under which it has granted (or may grant) a Security Interest on any partnershipof the Acquired Assets, limited liability company tangible or joint venture or similar venture or arrangementintangible;
(iv) each Purchased Contract with any customer insurance policy or production supplier that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000;binder; and
(v) each Purchased Contract any other arrangement (or group of related written arrangements) either involving more than $25,000 or not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 entered into in the aggregate in any calendar year; (B) the performance by or for the Business ordinary course of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing);
(x) any Contract, the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii)business.
(b) Except as set forth on Schedule 4.11(b) and other than with respect The Seller has made available to the 787 Supply Agreement: (i) each Material Contract is in full force and effect and (ii) each Material Contract constitutes Buyer a legal, valid, binding and enforceable obligation of Seller and, to Seller’s Knowledge, of the other party or parties thereto and is enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each written arrangement (as amended to date) listed in Section 2.10 of the Disclosure Schedule. With respect to each arrangement so listed: (i) the arrangement is valid, binding and enforceable and in full force and effect; (ii) except as set forth in Section 2.10(b) of the Disclosure Schedule, with respect to arrangements to which the Seller is a party, the arrangement is assignable by the Seller to the Buyer (or the Seller may enter into a subcontracting arrangement with the Buyer with regard to such written Material Contract arrangement) without the consent or approval of any party and will continue to be valid, binding and enforceable and in full force and effect immediately following the Closing substantially in accordance with the terms thereof as in effect prior to the Closing; and (iii) with respect to the arrangements to which the Seller is a party, the Seller is not, and to the Seller's knowledge no other party is, in breach or default, and no event has occurred which with notice or lapse of time would constitute a breach or default by Seller, or to Seller's knowledge, by the other party, or permit termination, modification, or acceleration, under the arrangement, nor to Seller's knowledge is there any dispute between the parties thereto.
(c) The Seller does not have any written or oral agreements or arrangements forming a partnership or joint venture or involving, including all amendments thereto) has been made available without limitation any loan to Buyeror from, or guaranty of indebtedness of, any officer, director, consultant, or stockholder of the Seller (other than Employee Benefit Plans).
Appears in 1 contract
Sources: Asset Purchase Agreement (Dataware Technologies Inc)
Contracts. (a) For purposes Section 3.13(a) of this Agreement, the Disclosure Schedule sets forth a complete and accurate list of each of the following shall constitute Contracts to which the Transferred Subsidiaries or, if Related to the Business or the ownership or operation of the Transferred Assets, to which any other member of the Seller Group is a “Material Contract”party or is bound by:
(i) each Purchased Contract relating to the employment (whether on a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control collective bargaining agreement or other Contract pursuant to which Seller is with any labor organization, trade union, works council or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000similar bargaining representative (a “Collective Agreement”);
(ii) except to a Contract, including customer contracts but excluding purchase orders and public tenders entered into in the extent included elsewhere in this Section 4.11(a)ordinary course of business consistent with past practice, each Purchased Contract relating in a material manner or primarily to for the acquisition, use, transfer, development, ownership, sharing or license sale of any Intellectual Property material to the conduct of product or service by the Business (other involving aggregate payments of more than nondisclosure agreements)$1,000,000 per year or $4,000,000 over the term of such Contract;
(iii) a Contract for the purchase by the Business of materials, supplies, equipment or services, including capital commitments or expenditures, involving aggregate payments of more than $1,000,000 per year or $4,000,000 over the term of such Contract;
(iv) a Contract (or group of related Contracts) under which any Transferred Subsidiary has created, incurred, assumed or guaranteed any Indebtedness related to the Transferred Assets or Transferred Subsidiaries, or issued any note or other evidence of Indebtedness to, any person, including any guarantee relating thereto (other than any Contract that will be terminated prior to or as of the Initial Closing), in each Purchased case in an amount greater than $1,000,000;
(v) any Contract creating that creates a Lien on the capital stock (or relating to comparable interest) of any of the Transferred Shares;
(vi) a Contract concerning the establishment, control, maintenance or operation of a partnership, limited liability company or joint venture or other similar venture agreement or arrangement;
(ivvii) each Purchased Contract with any customer or production supplier that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, Lease requiring (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess annual rentals of $250,000 in the aggregate in any calendar year; (B) the performance by 1,000,000 or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); more or (B) Buyer aggregate payments by or to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which any Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of its subsidiaries of $100,000 per annum2,000,000 or more to be made on or after the date hereof;
(viii) each Purchased a Contract with (A) any Affiliate of Seller pursuant to which a third party distributor (other than any employee affiliate of any Seller) has the right to distribute or resell products of the Business in a particular market and (B) any involving aggregate payments in excess of $1,000,000 per year or $2,000,000 over the Persons identified on Schedule 4.11(a)(viii)term of such Contract;
(ix) each note, debenture, bondany Contract that is a mortgage, indenture, guaranteeguaranty, loan, loan or credit or financing agreement, instrument security agreement or is a Contract to which any Transferred Subsidiary is a party creating or granting any Lien on any Transferred Assets or assets or properties of any Transferred Subsidiary, other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing)than Permitted Liens;
(x) any ContractContract for the acquisition of any Person or any business unit thereof or the disposition of any assets, other than Contracts (A) for acquisitions or dispositions of Inventory in the primary subject matter ordinary course of which is confidentiality, nondisclosure business consistent with past practice or (B) for acquisitions or dispositions that were consummated more than two (2) years prior to the date hereof;
(xi) any royalty or similar agreement Contract based on the revenues or profits of any Transferred Subsidiary;
(xii) any Contract of indemnification or guaranty to any Person not made in the ordinary course of business consistent with past practice;
(xiii) any Contract with any Governmental Entity, other than purchase orders or tender offers made in the ordinary course of business consistent with past practice;
(xiv) any Contract relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise) under which the Transferred Subsidiaries have an obligation with respect to confidentiality arrangements executed by an “earn out,” contingent purchase price or on behalf similar contingent payment obligation, or deferred purchase price payment obligation;
(xv) any Contract containing covenants that restrict or limit in any material respect the ability of Seller the Transferred Subsidiaries to engage in the Business or compete with respect to the Business with any Person or in any geographic area;
(xvi) any material Contract that contains a provision or covenant that by its express terms provides for exclusive dealings, “most favored nation” or other similar requirements in favor of any Person with respect to any material asset, product or service of the Business;
(xvii) (A) any Contract providing for employment or engagement of any Employee the performance of which mandates payment of annual compensation in excess of $50,000 and (B) each change in control, retention or similar Contracts with any Employee;
(xviii) any Contract that is a settlement, conciliation or similar agreement with any Governmental Entity or pursuant to which any Transferred Subsidiary or the Business will have any material outstanding obligation after the date of this Agreement;
(xix) any Contract under which any Seller or any subsidiary thereof has advanced or loaned any material amount to any director or officer of any of the Transferred Subsidiaries or any Employee, in each case outside of the ordinary course of business consistent with past practice;
(xx) any Contract (A) between any Seller or a Transferred Subsidiary, on the one hand, and an affiliate of any Seller, or any director, officer or equity holder of such affiliate, on the other hand and (B) between any Seller or any of its affiliates (other than a Transferred Subsidiary), on the one hand, and any Transferred Subsidiary, on the other hand;
(xxi) any material Contracts related to the development or co-development of Intellectual Property; and any Contract that is or contains licenses, sublicenses or other provisions under which a Seller or Transferred Subsidiary (A) is granted rights by others in Intellectual Property, other than Standard Agreements, and (B) has granted rights to others in Intellectual Property, other than Standard Agreements and non-exclusive licenses granted to customers pursuant to customer agreements entered into in the ordinary course of business consistent with past practice;
(xxii) any Contract pursuant to which any third party owes an obligation of confidentiality to Seller in relation Person provides support or maintenance for IT Systems material to the Business;
(xixxiii) each Purchased any Contract which createsthat involves the resolution, conciliation or may create, an Encumbrance settlement of any Claim that has not been fully performed by any Seller or any subsidiary thereof or otherwise imposes remaining obligations on any Purchased Asset in an amount such Seller or with a value such subsidiary thereof relating to the Business in excess of $50,0001,000,000 in any individual instance;
(xxiv) a Contract that is required to be filed by LivaNova as a “material contract” pursuant to Item 601(b)(10)(i) of Regulation S-K under the Securities Act or disclosed by LivaNova on a current report on Form 8-K; and
(xiixxv) each Purchased any other Contract not otherwise required to be set forth in any section or subsection of the Disclosure Schedule that (A) involves an aggregate future Liability to any person (other than any Seller or the Transferred Subsidiaries) in excess of $2,500,000 and (B) that is not terminable without payment or penalty on Schedule 4.11(a)(xii)thirty (30) calendar days’ (or less) notice.
(b) Except as All Contracts required to be set forth on in Section 3.11 and Section 3.13 of the Disclosure Schedule 4.11(b(such Contracts, the “Business Contracts”) are valid, binding and other than with respect in full force and effect, subject, as to enforcement, to the 787 Supply Agreement: (i) each Material Contract is Enforceability Exceptions, except for such failures to be valid, binding and in full force and effect and (ii) each that would not reasonably be expected to have a Material Contract constitutes a legalAdverse Effect. No member of the Seller Group is in breach or default under the Business Contracts, valid, binding and enforceable obligation of Seller and, to Seller’s Knowledgethe Knowledge of Sellers, no other party to any Business Contract, is in material breach or material default thereunder. Since December 31, 2016, no member of the Seller Group has received any written or, to the Knowledge of Sellers, oral, threat of termination, withdrawal or cancellation from any other party to a Business Contract that such party intends to terminate or parties thereto not renew such Business Contract. The Sellers have made available to Purchaser true and is enforceable in accordance complete copies of each Business Contract, together with its terms, subject only to applicable bankruptcy, insolvency, reorganization all material amendments and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generallysupplements thereto.
(c) Except as set Section 3.13(c) of the Disclosure Schedule sets forth on Schedule 4.11(c) a true, complete and other than with respect to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a accurate list of all written Material Business Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case effective as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to BuyerAgreement that are Mixed-Used Contracts.
Appears in 1 contract
Contracts. (a) For purposes Section 3.12(a) of the Company Disclosure Schedule lists the following agreements (each a “Contract”) to which the Company or any Subsidiary is a party as of the date of this Agreement, each of the following shall constitute a “Material Contract”:
(i) each Purchased Contract relating any agreement (or group of related agreements) for the lease of personal property from or to the employment (whether on a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000third parties;
(ii) except any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, (B) which involves more than the sum of $100,000, or (C) in which the Company or any Subsidiary has granted manufacturing rights, “most favored nation” pricing provisions or marketing or distribution rights relating to the extent included elsewhere in this Section 4.11(a)any services, each Purchased Contract relating in products or territory or has agreed to purchase a material manner minimum quantity of goods or primarily services or has agreed to the acquisition, use, transfer, development, ownership, sharing purchase goods or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)services exclusively from a certain party;
(iii) each Purchased Contract creating or relating to any partnershipagreement providing for any material royalty, limited liability company or joint venture milestone or similar venture or arrangementpayments by the Company;
(iv) each Purchased Contract with any customer agreement concerning the establishment or production supplier that involvesoperation of a partnership, joint venture or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000limited liability company;
(v) each Purchased Contract not with customers any agreement (or production suppliers that group of related agreements) under which the Company or any Subsidiary has created, incurred, assumed or guaranteed (or may not be terminated create, incur, assume or guarantee) Indebtedness (without penaltyincluding capitalized lease obligations) by Seller within thirty or under which it has imposed (30or may impose) days after the delivery a Lien on any of a termination notice by Seller and contemplating its assets, tangible or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar yearintangible;
(vi) each Seller Contract imposing any material, explicit restriction on agreement for the right disposition of any assets or ability business of (A) the Business to (1) compete with, Company or solicit any Subsidiary or any agreement for the services acquisition of the assets or employment of, business of any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business Person (other than nondisclosure agreementspurchases of inventory or components in the Ordinary Course of Business); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under any agreement concerning confidentiality, noncompetition or non-solicitation (other than confidentiality agreements with customers or suppliers of the Company or any Subsidiary or with Company Employees set forth in the Company’s standard form of employment agreement, a copy of which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annumhas previously been made available to the Parent);
(viii) any written employment agreement or consulting agreement that is not on the Company’s standard form of employment agreement or consulting agreement, each Purchased Contract with of which has been previously made available to the Parent (A) any Affiliate excluding employment agreements that are terminable “at will” without the payment of Seller (severance or other than any employee amounts upon termination, and consulting agreements which are terminable on 30 days or less notice without the payment of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viiiadditional consideration);
(ix) each noteany agreement providing for severance, debentureretention, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence ofchange in control payments, or Contract for, Indebtedness of Seller secured by transaction-based bonuses or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing)incentives;
(x) any Contractmaterial settlement agreement or settlement-related agreement (including any agreement in connection with which any employment- or individual services-related claim is settled);
(xi) any agreement entered into by the Company or any Subsidiary since inception (whether or not in effect as of the date of this Agreement) with any Affiliate of the Company or involving any current or former officer, director or stockholder of the primary subject matter Company or any Affiliate thereof;
(xii) any agreement under which the consequences of a default or termination would reasonably be expected to have a Company Material Adverse Effect;
(xiii) any material agency, distributor, sales representative, franchise or similar agreements to which the Company or any Subsidiary is a party or by which the Company or any Subsidiary is bound;
(xiv) any agreement which contains any provisions requiring the Company or any Subsidiary to indemnify any other party (excluding indemnities contained in agreements for the purchase, sale or license of products or services entered into in the Ordinary Course of Business);
(xv) any agreement that could reasonably be expected to have the effect of prohibiting or impairing the conduct of the business of the Company or any of the Subsidiaries as currently conducted and as currently proposed to be conducted;
(xvi) any agreement that would entitle any third party to receive a license or any other right to Intellectual Property of the Parent or any of the Parent’s Affiliates (excluding the Company and its Subsidiaries) following the Closing;
(xvii) any agreement relating to grants, funding or other forms of assistance received by the Company or any Subsidiary from any Governmental Entity;
(xviii) any agreement relating the research, development, clinical trial, manufacturing, distribution, supply, marketing or co-promotion of any products, product candidates or devices in development by or which has been or which is confidentialitybeing researched, nondisclosure developed, marketed, distributed, supported, sold or similar agreement with respect to confidentiality arrangements executed licensed out, in each case by or on behalf of Seller with respect to the Business pursuant to which Company or any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000Subsidiary; and
(xiixix) each Purchased Contract set forth on Schedule 4.11(a)(xii)any other agreement (or group of related agreements) either involving scheduled payments (by or to the Company) of more than $75,000 individually or $100,000 in the aggregate or not entered into in the Ordinary Course of Business.
(b) Except as set forth on Schedule 4.11(b) and other than with respect The Company has made available to the 787 Supply Agreement: (i) Parent a complete and accurate copy of each Material Contract is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller and, to Seller’s Knowledge, of the other party or parties thereto and is enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (iias amended to date) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A trueWith respect to each Contract: (i) the Contract is legal, correct valid, binding and complete copy enforceable and in full force and effect against the Company or the Subsidiary that is the party thereto, as applicable, and, to the Company’s Knowledge, against each other party thereto; (ii) the Contract will continue to be legal, valid, binding and enforceable and in full force and effect against the Company or the Subsidiary that is the party thereto, as applicable, 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; and (iii) neither the Company, any Subsidiary nor, to the Knowledge of each the Company, any other party, is in breach or violation of, or default under, any such Contract, and no event has occurred, is pending or, to the Knowledge of the Company, is threatened, which, after the giving of notice, with lapse of time, or otherwise, would constitute any such breach or default by the Company, any Subsidiary or, to the Knowledge of the Company, any other party under such Contract.
(c) To the Knowledge of the Company, neither the Company nor any Subsidiary is a party to any oral contract, agreement or other arrangement which, if reduced to written Material Contract form, would be required to be listed in Section 3.12(a) of the Company Disclosure Schedule under the terms of Section 3.12(a). To the Knowledge of the Company, neither the Company nor any Subsidiary is a party to any written or oral arrangement (including all amendments theretoi) to perform services or sell products which is expected to be performed at, or to result in, a loss or (ii) for which the customer has already been made available to Buyerbilled or paid that have not been fully accounted for on the Most Recent Balance Sheet.
Appears in 1 contract
Contracts. (a1) For purposes As of the date of this Agreement, each except as set forth in Section 4.01(m)(1) of the following shall constitute Company Disclosure Letter, the Company is not a “Material Contract”party to or bound by:
(iA) each Purchased Contract relating any lease, rental or occupancy agreement, license, installment or conditional sale agreement affecting real or personal property providing for annual payments of $25,000 or more;
(B) any Contract, excluding current accounts payable and accounts receivable arising in the ordinary course of business, not terminable without penalty on 60 days or less notice that requires future aggregate payments to or from the employment (whether on a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary Company of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,00025,000;
(iiC) except to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements);
(iii) each Purchased Contract creating or relating to any partnership, limited liability company joint venture, joint development or marketing or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture or similar venture of any other joint arrangement material to the Company or arrangementin which the Company owns more than a 15% voting or economic interest, or any interest valued at more than $25,000 or $100,000 in the aggregate without regard to percentage voting or economic interest;
(ivD) each Purchased any Contract with relating to (x) indebtedness for borrowed money or (y) the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any customer or production supplier that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84asset) shipsets per year), the payment or expenditure in excess of $2,000,00025,000;
(vE) each Purchased any Contract required to be filed as an exhibit to the Company’s Annual Report on Form 10-K pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act, which has not with customers been filed as required;
(F) any non-competition Contract or production suppliers other Contract that may not be terminated (without penaltyI) by Seller within thirty purports to limit in any material respect either the type of business in which the Company (30) days or, after the delivery Effective Time, Parent or its Subsidiaries) may engage or the manner or locations in which any of a termination notice by Seller and contemplating them may so engage in any business, (II) could require the disposition of any material assets or involvingline of business of the Company or, after the Effective Time, Parent or its Subsidiaries, or reasonably anticipated (III) grants “most favored nation” status that, following the Merger, would apply to involveParent and its Subsidiaries, including the Company;
(AG) any Contract to which the Company is a party containing a standstill or similar agreement pursuant to which one party has agreed not to acquire assets or securities of the other party or any of its Affiliates;
(H) any Contract between the Company and any director or officer of the Company or any Person beneficially owning five percent or more of the outstanding Company Common Shares;
(I) any Contract that contains a put, call or similar right pursuant to which the Company 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 $25,000 except for purchases and sales of inventory in the ordinary course of business; and
(J) any license agreement with respect to license to the Company of Intellectual Property providing for the payment or delivery by or to the Business of cash or other consideration royalties in an amount or having a value any year in excess of $250,000 in 25,000 (excluding licenses by the aggregate in Company of any calendar year; (B) “off the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing);
(x) any Contract, the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xiishelf” software products).
(b2) The Company has provided to Parent a complete and accurate copy of each Contract required to be listed in Section 4.01(m)(1) of the Company Disclosure Letter (each such Contract, other than Contracts described in Section 4.01(m)(1)(D)(y), a “Significant Contract”). Except as set forth out on Schedule 4.11(bSection 4.01(m)(2) of the Company Disclosure Letter, each Significant Contract is a valid and other than with respect to binding agreement of the 787 Supply Agreement: (i) Company, each Material Significant Contract is in full force and effect effect, the Company is not in material breach of any Significant Contract and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller and, to Seller’s Knowledge, the Knowledge of the other party or parties thereto and is enforceable in accordance with its termsCompany, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller each Significant Contract, no event has not violated or breached in any material respect or committed any material default under, any Material Contract (in each caseoccurred which, with or without notice or notice, lapse of time or both), nor is it would constitute or result in receipt of any written Claim of such default or a material breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d3) Other than under Except as set out on Section 4.01(m)(3) of the 787 Supply AgreementCompany Disclosure Letter, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in the Company is not a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant party to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Government Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 1 contract
Sources: Merger Agreement (Iomed Inc)
Contracts. (a) For purposes The Company has made available to Merger Sub true and correct copies of this Agreement, each all written agreements of the following shall constitute a “Material Contract”:
Company or its subsidiaries (other than contracts or leases for the sale in the ordinary course of business of the Company's services or products) that are currently in effect and that are (i) each Purchased Contract relating to the employment (whether on a full-time, part-time, consulting material license agreements or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000;
(ii) except to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements);
(iii) each Purchased Contract creating or relating to any partnership, limited liability company or joint venture or similar venture or arrangement;
(iv) each Purchased Contract franchise agreements with any customer or production supplier person that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure in excess of $2,000,000;
(v) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 provides services in the aggregate in any calendar year; (B) the performance by or for the Business name of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased Contract under which Seller (A) leases or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing);
(x) any Contract, the primary subject matter of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business;
(xi) each Purchased Contract which creates, or may create, an Encumbrance on any Purchased Asset in an amount or with a value in excess of $50,000; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii).
(b) Except as set forth on Schedule 4.11(b) and other than with respect to the 787 Supply Agreement: (i) each Material Contract is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller and, to Seller’s Knowledge, of the other party or parties thereto and is enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both).
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by SellerCompany; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant leases, sales contracts and other agreements with respect to any Material Contract; personal property of the Company or (iv) give any Person its subsidiaries which provide for the right to cancel, terminate receipt or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral expenditure by the Company or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of its subsidiaries after the date of this Agreement. A true, correct and complete copy of each such written Material Contract more than $1,000,000; (iii) contracts or commitments for capital expenditures or acquisitions in excess of $1,000,000 for one project or set of related projects; (iv) guarantees of third party obligations; (v) agreements (including non-competition agreements) which restrict the kinds of businesses in which the Company or its subsidiaries may engage or the geographical area in which any of them may conduct their business; (vi) indentures, mortgages, loan agreements or other agreements relating to the borrowing of money by the Company, the granting of Liens by the Company or lines of credit by the Company, in each case, involving an amount in excess of $1,000,000; (vii) collective bargaining agreements, if any; (viii) material licenses, agreements, assignments or contracts (whether as licensor or licensee, assignor or assignee) relating to any patent and trademark rights; (ix) brokerage or finder's agreements; (x) joint venture agreements, partnership agreements or similar agreements; or (xi) stock purchase agreements, asset purchase agreements or other acquisition or divestiture agreements executed within the last five years, in each case, involving an amount in excess of $1,000,000; (all amendments thereto) has been items so made available or required to be made available to BuyerMerger Sub being hereinafter referred to as "Contracts"). Except as disclosed in Section 3.17 of the Company Disclosure Statement, (i) all Contracts are valid and subsisting and in full force and effect, and each of the Company and its subsidiaries has duly performed its obligations thereunder in all material respects to the extent such obligations have accrued, and (ii) there has not occurred thereunder any breach or default by the Company, its subsidiaries, or, to the Company's Knowledge, by any other party thereto that continues to exist, or any event which with the passage of time or the giving of notice, or both, would result in a breach or default or event of non-compliance thereunder by the Company, its subsidiaries, or, to the Knowledge of the Company, by any other party thereto, except for such failures to be in full force and effect, failures to perform, breaches or defaults that, individually or in the aggregate, would not be material to the Company and its subsidiaries taken as a whole.
Appears in 1 contract
Sources: Merger Agreement (Mikasa Inc)
Contracts. (a) For purposes Section 4.12(a) of this Agreement, each the Company Disclosure Schedule lists all of the following shall constitute Contracts (each, a “Material Contract”) in effect as of the date of this Agreement to which the Company or any of its Subsidiaries is a party to or is expressly bound:
(i) each Purchased Contract relating to loan agreements, promissory notes, indentures, bonds, guarantees or obligations for borrowed money or other instruments involving Indebtedness, hedging instruments, off-balance sheet obligations (such as synthetic leases) or obligations of a partnership or unincorporated joint venture for which the Company may be liable as general partner or joint venturer of, or held by, the Company or any of its Subsidiaries in excess of $200,000;
(ii) partnership, joint venture or other similar agreement or arrangement with any Person that is not wholly owned by the Company;
(iii) agreements containing (A) any covenant or provision prohibiting the Company or any of its Subsidiaries from engaging in any line or type of business or (B) any exclusivity, most-favored-nation or similar provision;
(iv) Contracts for the acquisition or sale, directly or indirectly (by merger or otherwise), of assets or the securities of another Person, other than in the ordinary course of business, that either (A) was entered into within the last three years or (B) has any material ongoing obligations thereunder;
(v) Contracts for the employment (whether of any officer, individual employee or other Person on a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an basis providing annual base salary of more than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,000;
(ii) except to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in a material manner or primarily to the acquisition, use, transfer, development, ownership, sharing or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements);
(iii) each Purchased Contract creating or relating to any partnership, limited liability company or joint venture or similar venture or arrangement;
(iv) each Purchased Contract with any customer or production supplier that involves, or would reasonably be expected to involve (assuming delivery of eighty-four (84) shipsets per year), the payment or expenditure compensation in excess of $2,000,000;150,000 (other than standard offer letters); Table of Contents
(vvi) each Purchased Contract not with customers or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value Customer Contracts involving payments in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar year;
(vi) each Seller Contract imposing any material, explicit restriction on the right or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business 500,000 per year (other than nondisclosure agreementspurchase orders in the ordinary course of business consistent with past practice); or (B) Buyer to own and operate the 787 Program as currently conducted;
(vii) each Purchased any Contract under relating to capital expenditures with respect to the Company and involving future payments which Seller exceed $100,000 in any 12-month period;
(Aviii) leases pursuant to which personal property is leased to or subleases any real property or (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease the Company requiring payments or other consideration in excess of $100,000 per annum;
(viii) each Purchased Contract with (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of the Persons identified on Schedule 4.11(a)(viii)year;
(ix) each noteContracts providing for indemnification obligations in favor of any Person (other than any indemnification provisions that will be for the benefit of the Company or any of its Subsidiaries after the Closing), debenture, bond, indenture, guarantee, loan, credit or financing agreement, instrument or other evidence of, or Contract for, Indebtedness than customary indemnification provisions contained in contracts entered into in the ordinary course of Seller secured by or providing Encumbrances on the Purchased Assets, business and each Purchased Contract pursuant to which no claims for borrowed money (including for future loans, credit or financing)indemnification are outstanding;
(x) Contracts (other than those listed in clause (vi) above) that are reasonably likely to require payments by the Company or any Contractof its Subsidiaries in excess of $500,000 in any one (1) year, other than Contracts that are terminable by the primary subject matter Company or any of which is confidentiality, nondisclosure its Subsidiaries on sixty (60) days’ notice or similar agreement with respect less without obligation to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which make any third party owes an obligation of confidentiality to Seller in relation to the Businessmaterial payment;
(xi) each Purchased Contract which creates, Contracts that are reasonably likely to require payments to the Company or may create, an Encumbrance on any Purchased Asset in an amount or with a value of its Subsidiaries in excess of $50,000500,000 in any one (1) year other than Customer Contracts and purchase orders in the ordinary course of business consistent with past practice; andor
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii)Contracts with any investment bank or financial advisor or similar arrangements whether in connection with the transactions contemplated hereby or otherwise.
(b) The Company has made available to Parent a copy of each Material Contract (including all amendments thereto). Except as set forth on Schedule 4.11(bin Section 4.12(b) and other than with respect to of the 787 Supply Agreement: Company Disclosure Schedule, each Material Contract (i) each Material Contract is in full force and effect and (ii) each Material Contract constitutes a legal, valid, valid and binding and enforceable obligation of Seller the Company and/or its Subsidiaries, as applicable, and, to Seller’s Knowledgethe Knowledge of the Company, constitutes a valid and binding obligation of the other party or parties thereto and is enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except as set forth on Schedule 4.11(c) and other than with respect to the 787 Supply Agreement: (i) Seller has not violated or breached in any material respect or committed any material default under, any Material Contract (in each case, with or without notice or lapse of time or both), nor is it in receipt of any written Claim of such default or breach; and (ii) to the Knowledge of Sellerthe Company, is in full force and effect. To the Knowledge of the Company, no other Person has violated or breached in any material respect, or committed any material default under, party to any Material Contract (is in each case, with breach thereof or without notice or lapse of time or both)default thereunder.
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
Appears in 1 contract
Contracts. (a) For purposes Section 2.13 of the Disclosure Schedule lists the following agreements (written or oral) to which the Company is a party as of the date of this Agreement, each of the following shall constitute a “Material Contract”:
(i) each Purchased Contract relating any agreement (or group of related agreements) for the lease of personal property from or to the employment (whether on third parties providing for lease payments in excess of $25,000 per annum or having a full-time, part-time, consulting or other basis) of any Employee of the Business, and any “stay pay,” termination, change of control or other Contract pursuant to which Seller is or may become obligated to make any severance, termination or relocation payment to any current or former Employee of the Business who earns or earned an annual base salary of more remaining term longer than $60,000 or for which the cost of such severance, termination or relocation payment would exceed $30,00012 months;
(ii) except any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, (B) which involves more than the sum of $25,000, or (C) in which the Company has granted manufacturing rights, “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to the extent included elsewhere in this Section 4.11(a), each Purchased Contract relating in any products or territory or has agreed to purchase a material manner minimum quantity of goods or primarily services or has agreed to the acquisition, use, transfer, development, ownership, sharing purchase goods or license of any Intellectual Property material to the conduct of the Business (other than nondisclosure agreements)services exclusively from a certain party;
(iii) each Purchased Contract creating or relating any agreement which, to any partnershipthe knowledge of the Company, limited liability company establishes a partnership or joint venture or similar venture or arrangementventure;
(iv) each Purchased Contract with any customer agreement (or production supplier that involvesgroup of related agreements) under which it has created, incurred, assumed or would reasonably be expected to involve guaranteed (assuming delivery or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $25,000 or under which it has imposed (or may impose) a Security Interest on any of eighty-four (84) shipsets per year)its assets, the payment tangible or expenditure in excess of $2,000,000intangible;
(v) each Purchased Contract not with customers any agreement concerning confidentiality or production suppliers that may not be terminated (without penalty) by Seller within thirty (30) days after the delivery of a termination notice by Seller and contemplating or involving, or reasonably anticipated to involve, (A) the payment or delivery by or to the Business of cash or other consideration in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; (B) the performance by or for the Business of services in an amount or having a value in excess of $250,000 in the aggregate in any calendar year; or (C) the sale, lease or other disposition by or to the Business of goods, supplies, products and/or other Assets in an amount or having a value in excess of $250,000 in the aggregate in any calendar yearnoncompetition;
(vi) each Seller Contract imposing any material, explicit restriction on the right employment or ability of (A) the Business to (1) compete with, or solicit the services or employment of, any other Person; (2) sell any product or other Asset, or perform any services anywhere in the world; (3) acquire any product or other Asset or any services from any other Person, sell any product or other Asset to or perform any services for any other Person, or transact business with any other Person; or (4) develop, use, sell, enforce or license any Intellectual Property material to the Business (other than nondisclosure agreements); or (B) Buyer to own and operate the 787 Program as currently conductedconsulting agreement;
(vii) each Purchased Contract any agreement involving any officer, director or stockholder of the Company or any affiliate (as defined in Rule 12b-2 under which Seller the Securities Exchange Act of 1934, as amended (A“Exchange Act”)) leases or subleases any real property or thereof (B) leases or subleases any buildings, structures, improvements or appurtenances, in whole or in part, from any other Person involving lease payments or other consideration in excess of $100,000 per annuman “Affiliate”);
(viii) each Purchased Contract with any agreement or commitment for capital expenditures in excess of $25,000, for a single project (A) any Affiliate of Seller (other than any employee of Seller) or (B) any of it being represented and warranted that the Persons identified on Schedule 4.11(a)(viiiliability under all undisclosed agreements and commitments for capital expenditures does not exceed $100,000 in the aggregate for all projects);
(ix) each note, debenture, bond, indenture, guarantee, loan, credit any agreement under which the consequences of a default or financing agreement, instrument or other evidence of, or Contract for, Indebtedness of Seller secured by or providing Encumbrances on the Purchased Assets, and each Purchased Contract for borrowed money (including for future loans, credit or financing)termination would reasonably be expected to have a Company Material Adverse Effect;
(x) any Contractagreement which contains any provisions requiring the Company to indemnify any other party thereto (excluding indemnities contained in agreements for the purchase, sale or license of products entered into in the primary subject matter Ordinary Course of which is confidentiality, nondisclosure or similar agreement with respect to confidentiality arrangements executed by or on behalf of Seller with respect to the Business pursuant to which any third party owes an obligation of confidentiality to Seller in relation to the Business);
(xi) each Purchased Contract which creates, any other agreement (or may create, an Encumbrance on any Purchased Asset group of related agreements) either involving more than $25,000 or not entered into in an amount or with a value in excess the Ordinary Course of $50,000Business; and
(xii) each Purchased Contract set forth on Schedule 4.11(a)(xii)any agreement, other than as contemplated by this Agreement, relating to the sales of securities of the Company to which the Company is a party.
(b) Except The Company has delivered or made available to the Parent a complete and accurate copy of each agreement listed in Section 2.13 of the Disclosure Schedule. With respect to each agreement so listed, and except as set forth on Schedule 4.11(b) and other than with respect to in Section 2.13 of the 787 Supply AgreementDisclosure Schedule: (i) each Material Contract the agreement is in full force and effect and (ii) each Material Contract constitutes a legal, valid, binding and enforceable obligation of Seller andand in full force and effect; (ii) the agreement will continue to be legal, to Seller’s Knowledgevalid, of binding and enforceable and in full force and effect immediately following the other party or parties thereto and is enforceable Closing in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting enforcement of creditors’ rights generally.
(c) Except the terms thereof as set forth on Schedule 4.11(c) and other than with respect in effect immediately prior to the 787 Supply Agreement: Closing; and (iiii) Seller has not violated neither the Company nor, to the knowledge of the Company, any other party, is in breach or breached in any material respect violation of, or committed any material default under, any Material Contract (in each casesuch agreement, and no event has occurred, is pending or, to the knowledge of the Company, is threatened, which, after the giving of notice, with or without notice or lapse of time or both)otherwise, nor is it in receipt of any written Claim of such would constitute a material breach or default or breach; and (ii) by the Company or, to the Knowledge knowledge of Seller, no other Person has violated or breached in any material respect, or committed any material default underthe Company, any Material Contract (in each case, with or without notice or lapse of time or both)other party under such contract.
(d) Other than under the 787 Supply Agreement, no event or development has occurred, and no fact, circumstance or condition exists, that (with or without notice or lapse of time or both) has (i) resulted in a material violation or breach of any provision of any Material Contract by Seller; (ii) given any Person the right to declare a material default or exercise any remedy for breach under any Material Contract; (iii) given any Person the unilateral right to accelerate the maturity of material obligations pursuant to any Material Contract; or (iv) give any Person the right to cancel, terminate or modify, in any material respect, any Material Contract.
(e) Schedule 4.11(e) provides a list of all written Material Contracts (including all amendments thereto and excluding purchase orders issued pursuant to Material Contracts otherwise disclosed on such schedule) and a summary description of all material terms of any oral or unwritten Contract constituting a Material Contract (including any oral or unwritten amendments thereto), in each case as of the date of this Agreement. A true, correct and complete copy of each such written Material Contract (including all amendments thereto) has been made available to Buyer.
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