Contracts. (a) Except for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) of the GFI Disclosure Letter, neither GFI nor any GFI Subsidiary is a party to or bound by, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under: (i) any agreement relating to Indebtedness; (ii) any contracts under which GFI or any of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess of $500,000; (iii) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture; (iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement; (v) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000; (vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary; (vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary; (viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary; (ix) any agreement, other than such agreements entered into in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000; (x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery; (xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights); (xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year; (xiii) any material agreement with any Governmental Entity; (xiv) any material agreement between or among Affiliates of GFI; (xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or (xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effect. (b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or the GFI Subsidiaries, as applicable, and, to the Knowledge of GFI, with respect to the other parties thereto, and have been delivered or made available to Parent.
Appears in 5 contracts
Sources: Tender Offer Agreement (BGC Partners, Inc.), Tender Offer Agreement (BGC Partners, Inc.), Tender Offer Agreement (BGC Partners, Inc.)
Contracts. The Company has Previously Disclosed or provided (aby hard copy, electronic data room or otherwise) Except for this Agreementto the Investor or its representatives true, the CME Merger Agreement correct and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) complete copies of each of the GFI Disclosure Letter, neither GFI nor following to which the Company or any GFI Company Subsidiary is a party to or bound by(each, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:a “Material Contract”):
(i) any contract or agreement relating to Indebtednessindebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contracts contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which GFI the Company or any of the GFI Company Subsidiaries has advanced is lessee of, or loaned holds or operates, any property owned by any other Person any amounts with annual rent payments in excess of $500,000;
(iii) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(v) any lease or agreement under which the Company or series any of related agreementsthe Company Subsidiaries is lessor of, including or permits any option agreementPerson to hold or operate, relating to any property owned or controlled by the acquisition Company or disposition any of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material agreement with (A) any Person directly or indirectly owningrespect, controlling or holding with power to vote, 5% or more the ability of the outstanding voting securities of GFI Company or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities Company Subsidiaries to engage in any line of which are directly business or indirectly ownedto compete, controlled whether by restricting territories, customers or held otherwise, or in any other material respect, with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI SubsidiaryPerson;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (including other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any exclusivity contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) that any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any material respect either the type ability of business in which GFI the Company or any GFI Company Subsidiary may engage to solicit customers or the manner in which, or locations the localities in which which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of them may so engage in any business the Company Subsidiaries to own, operate, sell, transfer, pledge or could require the disposition otherwise dispose of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements entered into in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;; and
(xv) any Lease for the GFI Leased Real Property, and any other material contract or agreement that relates in would require any way to the occupancy consent or use approval of any a counterparty as a result of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effect.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) consummation of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiariestransactions contemplated by this Agreement. Each Material Contract (A) is legal, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or on the Company and the Company Subsidiaries which are a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating party to or affecting creditors’ rights or by general equity principlessuch contract, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunderB) is in full force and effect and enforceable in accordance with respect its terms and (C) will continue to GFI or be legal, valid, binding, enforceable, and in full force and effect in all material respects following the GFI consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, as applicable, and, nor to the Knowledge of GFIthe Company, with respect any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and have been delivered to the Knowledge of the Company, no event has occurred that with notice or made available to Parentlapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material Contracts.
Appears in 5 contracts
Sources: Investment Agreement (Central Pacific Financial Corp), Investment Agreement (Central Pacific Financial Corp), Investment Agreement (Anchorage Capital Group, L.L.C.)
Contracts. (a) Except for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) of the GFI Disclosure Letteras Previously Disclosed, neither GFI the Company nor any GFI Company Subsidiary is a party to any contracts or bound by, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits underagreements:
(i1) any agreement relating to Indebtednessindebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $100,000, except for those issued in the ordinary course of business;
(ii2) that constitutes a collective bargaining or other arrangement with any contracts labor union;
(3) that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(4) that is a lease or agreement under which GFI the Company or any of the GFI Company Subsidiaries has advanced is lessee of, or loaned holds or operates, any property owned by any other Person;
(5) that is a lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any amounts property owned or controlled by the Company or any of the Company Subsidiaries;
(6) limiting the ability of the Company or any of the Company Subsidiaries to engage, in any material respect, in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(7) that is a settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000100,000;
(iii8) that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $100,000);
(9) that concerns the sale or acquisition of any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to portion of the formation, creation, operation, management or control of any partnership, strategic alliance Company’s business;
(10) that concerns a partnership or joint venture;
(iv11) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(v) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for involving aggregate consideration liability in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning100,000 and which, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements entered into in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effect.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with cannot be cancelled by the Company without penalty or without notice more than 90 days’ notice;
(12) that concerns any material hedge, collar, option, forward purchasing, swap, derivative or lapse similar agreement, understanding or undertaking; and
(13) any other contract, agreement or understanding material to the Company or any of time the Company Subsidiaries or boththeir respective operations. Each Contract of a type Previously Disclosed above to this Section 2.2(t) (collectively, the “Material Contracts”), is (i) legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunderii) is in full force and effect and enforceable in accordance with respect its terms and (iii) will continue to GFI or be legal, valid, binding, enforceable, and in full force and effect on identical terms following the GFI consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, as applicablenor to the Company’s Knowledge, andany other party thereto is in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of GFIthe Company, with respect to each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and have been delivered to the Knowledge of the Company, no event has occurred that with notice or made available to Parentlapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the agreement and no party thereto has repudiated any provision of such contract.
Appears in 5 contracts
Sources: Investment Agreement (Hampton Roads Bankshares Inc), Investment Agreement (Hampton Roads Bankshares Inc), Investment Agreement (Hampton Roads Bankshares Inc)
Contracts. (a) Except for this Agreement, the CME Merger Agreement and except as filed with the SEC as an exhibit to any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) Company SEC Document, as of the GFI Disclosure Letterdate hereof, neither GFI nor none of the Company or any GFI Subsidiary of its Subsidiaries is a party to or is bound by, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:
(i) any agreement relating to Indebtedness;
(ii) any contracts under which GFI or by any of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess following categories of $500,000;
Contracts (iii) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(v) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than each such agreements entered into in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be Contract required to be filed as an exhibit to any GFI Company SEC Document or required to be listed in Section 3.15(a) of the Company Disclosure Letter, a “Company Material Contract”):
(i) any Contract required to be filed by the Company as described in Items 601(b)(4) and a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act) Act that has not been so filed as an exhibit (except for a Company Plan listed in Section 3.11(a) of the Company Disclosure Letter);
(ii) any Contract to which the Company is a party that (a) restricts the ability of the Company, its Subsidiaries or its Affiliates to (x) engage in or compete in any geographic area or line of business, market or field, (y) transaction with any Person or (z) solicit any client or customer, in each case in any manner that is material to the Company or that would restrict in any material respect Parent or its Subsidiaries following the Closing, (b) requires the Company, its Subsidiaries or its Affiliates to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company or that would restrict in any material respect Parent or its Subsidiaries following the Closing, or (c) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company or that would restrict in any material respect Parent or its Subsidiaries following the Closing;
(iii) any purchase, sale or supply Contract that contains “take or pay” provisions, volume requirements or commitments, exclusive or preferred purchasing arrangements, “most favored nation” provisions or promotional requirements;
(iv) any Contract to which the Company is a party that provides for payments to or incorporated by reference from the Company in excess of $500,000 in the GFI SEC Documents filed prior aggregate annually, but excluding for this purpose purchase orders for and invoices for transportation related to the Date shipment of Deliveryinventory entered into on customary terms in the ordinary course of business;
(v) any Contract creating, guaranteeing or securing indebtedness for borrowed money of the Company, in each case in excess of $500,000;
(vi) any Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures or joint ownership arrangements with third parties;
(vii) any Contract that (A) relates to the acquisition of material assets or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than $500,000 in the aggregate, (B) relates to the disposition (after the date of this Agreement), directly or indirectly, of material assets of the Company or its Subsidiaries or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or its Subsidiaries or (C) contains a put, call, right of first refusal or similar right pursuant to which the Company or its Subsidiaries could be required to purchase or sell, as applicable, any of the foregoing;
(viii) any Contract that relates to the sale, transfer or other disposition of a business or assets by the Company pursuant to which the Company has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations;
(ix) any Contract with a term exceeding one year after the date of this Agreement which is a financial derivative interest rate hedge with a value in excess of $250,000;
(x) any Contract pursuant to which the Company or any of its Subsidiaries grants to or receives from a third party a license or other right to use any Intellectual Property that is material to the Company or any of its Subsidiaries or the operation of their businesses, excluding non-exclusive licenses to software that is commercially available to the public generally (including any such software provided on a SaaS basis) in each case with annual or one-time license, maintenance, support and other fees of less than $250,000;
(xi) each Contract that grants any agreement under which GFI right of first refusal, first notice, first negotiation or right of first offer or similar right with respect to any GFI Subsidiaries has granted any Person registration assets, rights (including demand and piggy-back registration rights)or properties of the Company or its Subsidiaries;
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per yeareach Labor Agreement;
(xiii) any material agreement Contract with any a Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFIthe Company Real Property Leases;
(xv) each Contract (other than any Lease for Organizational Document) between the GFI Leased Real PropertyCompany or any of its Subsidiaries, on the one hand, and any director, officer or Affiliate (other agreement that relates in any way to than a wholly owned Subsidiary of the occupancy Company) of the Company or use of any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the GFI Leased Real Property; orExchange Act), on the other hand, including (but not limited to) any Contract pursuant to which the Company or any of its Subsidiaries has an obligation to indemnify such director, officer, Affiliate or “associate” or “immediate family” member, but excluding any Company Plan;
(xvi) any agreement each Contract expressly limiting or restricting the termination ability of the Company or breach of which its Subsidiaries (i) to make distributions or the failure to obtain consent declare or pay dividends in respect of constitutes a Material Adverse Effect.
(b) The agreementstheir capital stock, commitmentspartnership interests, arrangements and plans, whether written membership interests or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiaryequity interests, as the case may be, enforceable in accordance with (ii) to pledge their capital stock or other equity interests, (iii) to issue any guaranty, (iv) to make loans to the Company or its termsSubsidiaries, or (v) to grant liens on the property of the Company or its Subsidiaries; and
(xvii) each Contract that obligates the Company or its Subsidiaries to make any loans, advances or capital contributions to, or investments in, any Person, except for (i) loans or advances for indemnification, attorneys’ fees, or travel and other business expenses in the ordinary course of business, or (ii) loans, advances or capital contributions to, or investments in, any Person that is not an Affiliate or Company Employee not in excess of $100,000 individually;
(xviii) each Contract that is a (A) bid bonds, payment bonds, performance bonds, Tax bonds, licensing bonds, reclamation bonds, surety bonds or any similar undertaking or financial security arrangements or (B) indemnity or underwriting agreements or other contracts with a surety, in each case in excess of $500,000.
(b) Each Company Material Contract has not been terminated prior to the date of this Agreement, is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, any other party thereto, except (i) for such failures to be valid and binding or to be in full force and effect that, individually or in the aggregate, has not been, and would not reasonably be expected to be, materially adverse to the Company and its Subsidiaries, taken as a whole, or (ii) to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and reorganization or similar laws Laws affecting the enforcement of general applicability relating to or affecting creditors’ rights generally or by general equity principlesprinciples of equity. Except as, (iii) individually or in the aggregate, has not been, and would not reasonably be expected to be, materially adverse to the Knowledge Company and its Subsidiaries, taken as a whole, there are no existing breaches or defaults under any Company Material Contract or Company Real Property Lease by the Company or any of GFIits Subsidiaries party thereto or, to the knowledge of the Company, any other party thereto, and no event or action has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, failed to occur that with or without notice or the lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments the giving of notice or both would constitute a default thereunder by the Company or any of its Subsidiaries party thereto and waivers thereunder) is in full force and effect with respect to GFI or the GFI Subsidiaries, as applicable, andor, to the Knowledge knowledge of GFIthe Company, with respect any other party thereto. Prior to the other parties theretodate of this Agreement, and have been delivered or the Company has made available to ParentParent accurate and complete copies of each Company Material Contract in effect as of the date of this Agreement, together with all material amendments and supplements thereto in effect as of the date of this Agreement. Prior to the date of this Agreement, no counterparty to a Company Material Contract or Company Real Property Lease has cancelled, terminated or substantially curtailed its relationship with the Company or its Subsidiaries, given notice to the Company or its Subsidiaries of any intention to cancel, terminate or substantially curtail its relationship with the Company or its Subsidiaries, or, to the knowledge of the Company, threatened to do any of the foregoing or, to the knowledge of the Company, been threatened with bankruptcy or insolvency.
Appears in 4 contracts
Sources: Merger Agreement (Brand House Collective, Inc.), Merger Agreement (Brand House Collective, Inc.), Merger Agreement (Bed Bath & Beyond, Inc.)
Contracts. (a) Except for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a4.14(a) of the GFI Company Disclosure Letter, neither GFI nor Letter lists the following contracts to which any GFI Subsidiary of the Company or the Subsidiaries is a party to or bound by, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits underby which it is bound:
(i) any agreement relating contract (or group of related contracts) involving the performance of services or the purchase of goods, materials or other assets by or to Indebtednessthe Company or any of the Subsidiaries, the performance of which will involve (A) annual payments to or from the Company and the Subsidiaries of $250,000 or more, or (B) aggregate payments (including termination penalties) to or from the Company and the Subsidiaries of $1,000,000 or more;
(ii) any contracts contract concerning a partnership, limited liability company or joint venture;
(iii) any contract (or group of related contracts) under which GFI it has (x) created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $500,000 or (y) imposed an Encumbrance on any of its assets, tangible or intangible;
(iv) any contract concerning confidentiality or noncompetition or that limits or otherwise restricts the Company or any of the GFI Subsidiaries or that would, after the Effective Time, limit or restrict Parent, the Surviving Corporation or any of the Subsidiaries or any successor thereto or any of their respective Affiliates, from engaging or competing in any line of business or in any geographic area, including any contract containing any "radius clause" applicable to markets in which the Company has operations;
(v) any contract relating to collective bargaining or employee association;
(vi) any contract for the employment of any individual on a full-time, part-time, consulting, or other basis who is an officer or director of the Company or any of the Subsidiaries or any Affiliate of any of them, or that provides for annual compensation in excess of $100,000 or any severance benefits;
(vii) any contract under which the Company or any of the Subsidiaries has advanced or loaned any Person amount to any amounts of its directors, officers or employees;
(viii) any contract under which the consequences of a default or termination could reasonably be expected to have a Company Material Adverse Effect;
(ix) any other contract (or group of related contracts) the performance of which involves aggregate consideration in excess of (A) $500,000250,000 or more annually, or (B) $1,000,000 or more in the aggregate;
(iiix) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating contract that relates to any proposed Acquisition Proposal as to which discussions have not been terminated prior to the formationdate of this Agreement, creationincluding all commitments containing confidentiality, operationstandstill, management non-solicitation or control of any partnership, strategic alliance or joint venturesimilar provisions;
(ivxi) any material agreement relating contract to which the Company or any strategic alliance, joint development, joint marketing, partnership of the Subsidiaries has continuing indemnification obligations or similar arrangementpotential liability;
(vxii) any agreement contract providing for the sale or series of related agreementsexchange of, including or option to sell or exchange, any Property, or for the purchase or exchange of, or option agreementto purchase or exchange, relating to any real estate;
(xiii) any contract for the acquisition or disposition of any business disposition, directly or real property indirectly (whether by mergermerger or otherwise), sale of stock, sale of assets or otherwise) Equity Interests of another person for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning500,000, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, each case other than such agreements entered into in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between contract pursuant to which the Company or among Affiliates any of GFIthe Subsidiaries manages any real property;
(xv) any Lease advertising or other promotional contract providing for payment by the GFI Leased Real Property, and Company or any other agreement that relates in any way to the occupancy Subsidiary of $250,000 or use of any of the GFI Leased Real Property; ormore;
(xvi) any agreement license, royalty or other contract concerning Intellectual Property (other than shrink-wrap software and databases licensed to the termination Company or breach to any of which the Subsidiaries under nonexclusive software licenses granted to end-user customers by third parties in the ordinary course of business of such third parties' businesses), such Company Disclosure Letter indicating, in the case of any such license, whether the Company or any of the failure to obtain consent Subsidiaries is the licensee or licensor; and
(xvii) each amendment, supplement and modification (whether written or oral) in respect of constitutes a Material Adverse Effectany of the foregoing.
(b) The agreements, commitments, arrangements Company has made available to Parent a correct and plans, whether complete copy of each written or oral, listed or required to be contract listed in Section 2.19(a4.14(a) of the GFI Company Disclosure Letter together with and a written summary setting forth the GFI License Agreements are terms and conditions of each oral contract referred to herein in Section 4.14(a) of the Company Disclosure Letter. With respect to each such contract (except as set forth in Section 4.14(a) of the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, Company Disclosure Letter): (i) neither GFI nor any GFI Subsidiary the contract is andlegal, to the Knowledge of GFIvalid, no other party isbinding, enforceable, and in breach or violation of, or in default under, any GFI Contract, full force and effect; (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiarythe contract will continue to be legal, as the case may bevalid, enforceable in accordance with its termsbinding, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both)enforceable, and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI on identical terms following the Effective Time; (iii) no party is in breach or the GFI Subsidiaries, as applicable, and, to the Knowledge of GFI, with respect to the other parties theretodefault, and have been delivered no event has occurred that with the passage of time or made available to Parentgiving of notice would constitute a breach or default, or permit termination, modification, or acceleration, under the contract; and (iv) no party has repudiated any provision of the contract.
Appears in 4 contracts
Sources: Merger Agreement (Everlast Worldwide Inc), Merger Agreement (Horowitz Seth), Merger Agreement (Horowitz Seth)
Contracts. (a) Except for as filed as an exhibit to a Company SEC Document prior to the date of this Agreement, and except for the CME Merger Agreement and any Company Benefit Plans, each of the following contracts, agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract arrangements are set forth in Section 2.19(a3.18(a) of the GFI Company Disclosure Letter, neither GFI nor any GFI Subsidiary is a party to or bound by, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:
(i) any agreement relating to Indebtednessindebtedness (other than agreements among direct or indirect wholly owned Company Subsidiaries) in excess of $10 million;
(ii) any contracts under which GFI or any of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess of $500,000;
(iii) any material joint venture, partnership, limited liability company, shareholder, company or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(viii) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any material business or material real property (whether by merger, sale of stock, sale of assets or otherwise) exceeding $15 million individually or $30 million in the aggregate for aggregate consideration in excess a series of $2,000,000related agreements;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(viiiv) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI the Company or any GFI Company Subsidiary (or, after the Effective Time, the Surviving Corporation or its Subsidiaries) may engage or the manner or locations in which any of them may so engage in any business in which the Company is currently engaged including any covenant not to compete, or that could require the disposition of any material assets or line of business of GFI the Company or any GFI Company Subsidiary;
(viiiv) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI providing for the production by the Company or any GFI Subsidiary;
(ix) Company Subsidiary of any agreementproduct on an exclusive or requirements basis or the purchase by the Company or any Company Subsidiary of any product on an exclusive or output basis, other than such agreements in each case not entered into in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner business consistent with industry past practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(xvi) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document “material contract” (as described such term is defined in Items 601(b)(4) and Item 601(b)(10) of Regulation S-K under of the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rightsSEC);
(xiivii) any agreement that involves expenditures or receipts of GFI the Company or any GFI Company Subsidiary in excess of $3,000,000 10 million per year not entered into in the aggregate per yearordinary course of business consistent with past practice;
(xiiiviii) any agreement by which the Company or any Company Subsidiary licenses or otherwise obtains the right to use material agreement with Intellectual Property rights of any Governmental Entity;
other Person (xivother than licenses for readily available commercial software) or by which the Company or any Company Subsidiary is restricted in its right to use or register, or licenses or otherwise permits any other Person to use, enforce, or register any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Company Owned Intellectual Property; or
(xviix) any agreement the termination or breach of which or the failure would reasonably be expected to obtain consent result in respect of constitutes a Material Adverse EffectEffect on the Company.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or plans that are required to be listed set forth in Section 2.19(a3.18(a) of the GFI Company Disclosure Letter together with Letter, or that would be required to be set forth but for the GFI License Agreements filing thereof as exhibits to the Company SEC Documents, are referred to herein as the “GFI Company Contracts.” Except as with respect to matters that, individually or in the aggregate, have not resulted in and would not have reasonably be expected to result in a material impact adverse effect on the respective businesses business or operations of GFI the Company and the GFI its Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Company Contract is a valid and binding agreement of GFI the Company or a GFI Company Subsidiary, as the case may be, enforceable and is in accordance with its termsfull force and effect, except as may be limited by applicable bankruptcyand none of the Company, insolvencyany Company Subsidiary or, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge knowledge of GFIthe Company, any other party thereto is in default or breach in any material respect under the terms of any such Company Contract; and since January 1, 2009, neither the Company nor any Company Subsidiary, as the case may be, has waived any material right or relinquished any material benefit under any such Company Contract; and no event has occurred which would result in a breach or violation ofoccurred, which, after the giving of notice, with lapse of time, or otherwise, would constitute a material default underby the Company or any Company Subsidiary or, to the knowledge of the Company, any GFI Contract (in other party under such Company Contract. True, correct and complete copies of each case, with or without notice or lapse of time or both), and (iv) each GFI such Company Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or the GFI Subsidiaries, as applicable, and, to the Knowledge of GFI, with respect to the other parties thereto, and have been delivered or made available to Parent.
Appears in 4 contracts
Sources: Merger Agreement (Terra Industries Inc), Merger Agreement (CF Industries Holdings, Inc.), Agreement and Plan of Merger (CF Industries Holdings, Inc.)
Contracts. (a) Except for this AgreementContracts filed as exhibits to the Filed SEC Documents, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) as of the GFI Disclosure Letter, neither GFI nor any GFI Subsidiary is a party to or bound by, nor date hereof there are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:
(i) any agreement relating to Indebtedness;
(ii) any contracts under which GFI or any of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess of $500,000;
(iii) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(v) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which no Contracts that are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements entered into in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI Filed SEC Document (under the Exchange Act and the rules and regulations promulgated thereunder. Except for Contracts filed in unredacted form as described in Items 601(b)(4) and 601(b)(10exhibits to the Filed SEC Documents, Section 3.01(h) of Regulation S-K under the Securities ActCompany Disclosure Schedule sets forth a true and complete list of:
(i) all Contracts to which the Company or any of its subsidiaries is a party, or that purports to be binding upon the Company, any of its subsidiaries or any of its affiliates, that contain a covenant (a "Restrictive Covenant") materially restricting the ability of the Company or any of its subsidiaries (or which, following the consummation of the Merger, could materially restrict the ability of Parent or any of its subsidiaries, including the Company and its subsidiaries) to compete in any business that is material to the Company and its subsidiaries, taken as a whole, or Parent and its subsidiaries, taken as a whole, or with any person or in any geographic area, except for any such Contract (x) that has would not been filed as an exhibit be expected to or incorporated by reference result in the GFI SEC Documents filed prior Company incurring costs or receiving revenues in excess of $5,000,000 per year, (y) that may be canceled without penalty by the Company or any of its subsidiaries upon notice of 60 days or less or (z) the terms and scope (including with respect to any Restrictive Covenants) are customary in the Date airline industry for Contracts of Deliverythat type;
(xiii) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights all material joint venture, partnership, business alliance (excluding information technology contracts), code sharing and frequent flyer agreements (including demand and piggy-back registration rightsall material amendments to each of the foregoing agreements);
(xiiiii) any agreement all maintenance agreements for repair and overhaul that involves expenditures or receipts of GFI or any GFI Subsidiary would be expected to result in the Company incurring costs in excess of $3,000,000 in 10,000,000 per year (including all material amendments to each of the aggregate per year;foregoing agreements); and
(xiiiiv) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any as of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effect.
(b) The date hereof, all loan agreements, commitmentscredit agreements, arrangements notes, debentures, bonds, mortgages, indentures and plans, whether written or oral, listed or required other Contracts pursuant to be listed in Section 2.19(awhich any indebtedness (which term shall include capital leases and operating leases) of the GFI Disclosure Letter together with Company or any of its subsidiaries is outstanding or may be incurred and all guarantees of or by the GFI License Agreements are referred to herein as Company or any of its subsidiaries of any indebtedness of any other person (except for such indebtedness or guarantees of indebtedness the “GFI Contracts.” Except as would aggregate principal amount of which does not have a material impact on exceed $10,000,000), including the respective businesses aggregate principal amounts outstanding as of GFI the date of this Agreement. The Company has previously disclosed to Parent in writing, based upon the assumptions in such writing, the aggregate amount of indebtedness (which shall be deemed solely for purposes of this sentence to consist of capital leases, aircraft operating leases and indebtedness for borrowed money) of the GFI SubsidiariesCompany and its subsidiaries (including all guarantees of indebtedness to third parties) as of the date of this Agreement. None of the Company or any of its subsidiaries is in violation of or default (with or without notice or lapse of time or both) under, (i) neither GFI nor or has waived or failed to enforce any GFI Subsidiary rights or benefits under, any Contract to which it is a party or by which it or any of its properties or assets is bound, and, to the Knowledge knowledge of GFIthe Company or such subsidiary, no other party is, to any of its Contracts is in breach violation or violation ofdefault (with or without notice or lapse of time or both) under, or in default has waived or failed to enforce any rights or benefits under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, there has occurred no event has occurred which would result in a breach giving to others any right of termination, amendment or violation cancelation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both), any such Contract except, in each case, for violations, defaults, waivers or failures to enforce benefits that individually or in the aggregate would not be expected to result in (taking into account the likelihood of such result occurring and (ivthe expected magnitude of such event if it were to occur) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is a material adverse effect. Except as identified in full force and effect with respect writing by the Company to GFI or the GFI Subsidiaries, as applicable, and, Parent prior to the Knowledge date of GFIthis Agreement, with respect to the other parties thereto, and have been Company has delivered or made available to ParentParent or its representatives true and complete copies of all Contracts listed on Section 3.01(h) of the Company Disclosure Schedule.
Appears in 4 contracts
Sources: Merger Agreement (Us Airways Inc), Merger Agreement (Ual Corp /De/), Merger Agreement (Ual Corp /De/)
Contracts. (a) Except for this AgreementSchedule 5.17(a) lists the following written Contracts (collectively, the CME Merger Agreement and “Material Contracts”) to which any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) member of the GFI Disclosure Letter, neither GFI nor any GFI Subsidiary Company Group is a party to or bound by, nor and which are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits undercurrently in effect:
(i) all Contracts that require annual payments or expenses by, or annual payments or income to, any agreement relating to Indebtednessmember of the Company Group of $500,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practice);
(ii) all sales, advertising, agency, lobbying, broker, sales promotion, market research, marketing or similar contracts and agreements, in each case requiring the payment of any contracts commissions by any member of the Company Group in excess of $500,000 annually;
(iii) all employment Contracts, employee leasing Contracts, and consultant and sales representatives Contracts with any current or former officer, director, employee or consultant of the Company Group or other Person, under which GFI or any member of the GFI Subsidiaries Company Group (A) has advanced continuing obligations for payment of annual compensation of at least $200,000 (other than oral arrangements for at-will employment), (B) has material severance or loaned post termination obligations to such Person (other than COBRA obligations, or (C) has an obligation to make a payment upon consummation of the transactions contemplated hereby or as a result of a change of control of any Person member of the Company Group;
(iv) all Contracts creating a material joint venture, material strategic alliance, material limited liability company and partnership agreements;
(v) all Contracts relating to any amounts material acquisitions or dispositions of assets in excess of $500,000;
(iiivi) any all Contracts for material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(v) any agreement or series of related licensing agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreementContracts licensing Intellectual Property Rights, other than such agreements entered into (i) “shrink wrap” licenses, and (ii) non-exclusive licenses granted in the ordinary course of business;
(vii) all Contracts relating to material secrecy, under which (A) confidentiality and nondisclosure agreements materially restricting the conduct of any member of the Company Group or substantially limiting the freedom of any member of the Company Group to compete in any line of business, with any Person or in any geographic area;
(viii) all Contracts relating to material patents, trademarks, service marks, trade names, brands, copyrights, trade secrets and other than GFI or a GFI Subsidiarymaterial Intellectual Property Rights of the Company Group;
(ix) has directly or indirectly guaranteed all Contracts providing for material guarantees, indemnification arrangements and other hold harmless arrangements made or provided an indemnity in respect by any member of any liabilitiesthe Company Group, obligations including all ongoing agreements for repair, warranty, maintenance, service, indemnification or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;similar obligations
(x) any other agreement all Contracts with or amendment thereto that would be required to be filed as an exhibit pertaining to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) member of Regulation S-K under the Securities Act) that has not been filed as an exhibit Company Group to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Deliverywhich any Affiliate is a party;
(xi) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights member of the Company Group holds a leasehold interest (including demand the Leases) and piggy-back registration rights)which involve payments to the lessor thereunder in excess of $100,000 per month;
(xii) all Contracts relating to outstanding Indebtedness, including financial instruments of indenture or security instruments (typically interest-bearing) such as notes, mortgages, loans and lines of credit, except any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of such Contract with an aggregate outstanding principal amount not exceeding $3,000,000 in the aggregate per year1,000,000;
(xiii) any material agreement with Contract relating to the voting or control of the equity interests of any Governmental Entitymember of the Company Group or the election of directors of any member of the Company (other than the Organizational Documents of the Company Group);
(xiv) any material agreement between Contract that can be terminated, or among Affiliates the provisions of GFI;which are altered so that the purpose of the Contract cannot be achieved, as a result of the consummation of the transactions contemplated by this Agreement or any of the Additional Agreements; and
(xv) any Lease Contract for which any of the GFI Leased Real Propertybenefits, and any other agreement that relates in any way compensation or payments (or the vesting thereof) with respect to a director, officer, employee or consultant of a member of Company Group will be increased or accelerated by the occupancy consummation of the transactions contemplated hereby or use the amount or value thereof will be calculated on the basis of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effecttransactions contemplated by this Agreement.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact set forth on the respective businesses of GFI and the GFI SubsidiariesSchedule 5.17(b), (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Material Contract is a valid and binding agreement of GFI or a GFI Subsidiaryagreement, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect effect, and neither any member of the Company Group nor, to the Company’s knowledge, any other party thereto, is in material breach or material default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract, (ii) no member of the Company Group has assigned, delegated, or otherwise transferred any of its rights or obligations with respect to GFI any Material Contracts, or granted any power of attorney with respect thereto, (iii) no Contract (A) requires any member of the GFI Subsidiaries, as applicable, and, Company Group to post a bond or deliver any other form of security or payment to secure its obligations thereunder or (B) imposes any non-competition covenants that may be binding on and materially restrict the Knowledge of GFI, Business or require any payments by or with respect to the SPAC, any of its Affiliates, or the transactions contemplated hereby. The Company has previously provided to the SPAC true, correct, complete and fully executed copies of each Material Contract.
(c) Except as would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect, none of the execution, delivery or performance by any member of the Company Group of this Agreement or any Additional Agreements to which such member of the Company Group is a party or the consummation by any member of the Company Group of the transactions contemplated hereby or thereby constitutes a default under or gives rise to any right of termination, cancellation or acceleration of any obligation of the Company or to a loss of any material benefit to which the Company Group is entitled under any provision of any Material Contract.
(d) Each member of the Company Group is in compliance in all material respects with all material covenants and all financial covenants in all notes, indentures, bonds and other parties theretoinstruments or agreements evidencing any Indebtedness.
(e) Each of the material transactions between any member of the Company Group and any Shareholder, officer, employee or director of any member of the Company Group or any Affiliate of any such Person (if any) entered into or occurring prior to the Closing (i) is arms-length transaction with fair market price and have been delivered does not impair the interests of the Shareholders, or made available to Parent(ii) is transaction duly approved by the board of directors in accordance with the Organizational Documents of such member of the Company Group (if applicable).
Appears in 4 contracts
Sources: Agreement and Plan of Merger (Nukkleus Inc.), Agreement and Plan of Merger (Brilliant Acquisition Corp), Merger Agreement (Nukkleus Inc.)
Contracts. (a) Except for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a2.16(a) of the GFI Disclosure LetterSchedule (with paragraph references corresponding to those set forth below) contains a true and complete list of each of the following Contracts or other arrangements (true and complete copies or, neither GFI nor if none, reasonably complete and accurate written descriptions of which, together with all amendments and supplements thereto and all waivers of any GFI Subsidiary terms thereof, have been delivered to Parent prior to the execution of this Agreement) to which the Company, Galaxy Mall or IMI is a party to or bound by, nor are by which any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits underAssets and Properties are bound:
(i) any agreement relating to Indebtedness;
(ii) any contracts under which GFI or any of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess of $500,000;
(iii) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(v) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) all Contracts (excluding Plans and Benefit Programs or Agreements) providing for a commitment of employment or consultation services for a specified or unspecified term to, or otherwise relating to employment or the termination of employment of, any Person directly or indirectly owningEmployee, controlling or holding with power the name, position and rate of compensation of each Employee party to vote, 5% or more such a Contract and the expiration date of the outstanding voting securities of GFI or any GFI Subsidiary, each such Contract exceeding $50,000; and (B) any Person 5% written or more unwritten representations, commitments, promises, communications or courses of conduct (excluding Plans and Benefit Programs or Agreements and any such Contracts referred to in clause (A)) involving an obligation of the outstanding voting securities of which are directly Company, Galaxy Mall or indirectly owned, controlled or held with power IMI to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict make payments in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreementyear, other than such agreements entered into with respect to salary or incentive compensation payments in the ordinary course of business, under which to any Employee exceeding $100,000 or any group of Employees exceeding $100,000 in the aggregate;
(ii) all Contracts with any Person containing any provision or covenant prohibiting or limiting the ability of the Company, Galaxy Mall or IMI to engage in any business activity or compete with any Person in connection with the Business or prohibiting or limiting the ability of any Person to compete with the Company, Galaxy Mall or IMI in connection with the Business;
(iii) all partnership, joint venture, shareholders' or other similar Contracts with any Person in connection with the Business;
(iv) all Contracts with distributors, dealers, manufacturer's representatives, sales agencies or franchises with whom the Company, Galaxy Mall or IMI deals in connection with the Business;
(v) all Contracts relating to the future disposition or acquisition of any Assets and Properties, other than dispositions or acquisitions of inventory in the ordinary course of business consistent with past practice;
(vi) all collective bargaining or similar labor Contracts covering any Employee;
(vii) all other Contracts (other than Plans and Benefit Programs or Agreements, the Real Property Leases and insurance policies listed in Section 2.18 of the Disclosure Schedule and those Contracts listed on Section 2.15 or 2.17 of the Disclosure Schedule) with respect to the Business that (A) any Person (other than GFI involve the payment or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect potential payment, pursuant to the terms of any liabilitiessuch Contract, obligations by or commitments to Galaxy Mall or IMI of GFI or any GFI Subsidiary or more than $25,000 annually and (B) GFI cannot be terminated within thirty (30) days after giving notice of termination without resulting in any material cost or any GFI Subsidiary has directly penalty to the Company, Galaxy Mall or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;IMI; and
(xviii) without limiting any other agreement of the foregoing, all Contracts relating to any strategic alliance with another Person, including, without limitation, Earthlink, Professional Marketing International, United Marketing Solutions, and International Television Products. Notwithstanding the foregoing, the Company represents and warrants that it or amendment thereto that would its Subsidiaries have entered into approximately 40,000 Contracts with online merchants and, with the consent of Parent, will not be required to be filed as an exhibit to list each such Contract on the Disclosure Schedule unless any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior such Contract, individually, is material to the Date of Delivery;
(xi) any agreement under which GFI Business or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any Condition of the GFI Leased Real Property; or
(xvi) Company. The Company has hereto furnished to Parent representative examples of all of the types of online merchant Contracts presently used by the Company or its Subsidiaries. The Company further represents and warrants that IMI has entered into approximately 100 customer Contracts and, with the consent of Parent, will not be required to list each such Contract on the Disclosure Schedule unless any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effectsuch Contract, individually, exceeds $10,000.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or Each Contract required to be listed disclosed in Section 2.19(a2.16(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have Schedule is in full force and effect and constitutes a material impact on the respective businesses of GFI and the GFI Subsidiarieslegal, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may beagreement, enforceable in accordance with its terms, of each party thereto, except as enforcement thereof may be limited by applicable (i) Laws of general application relating to bankruptcy, insolvency, reorganization, insolvency moratorium, fraudulent transfer reorganization or other similar Laws, both state and similar laws federal, affecting the enforcement of general applicability relating to or affecting creditors’ ' rights or by general equity principlesremedies in general, and (iiiii) rules of Law governing specific performance, injunctive relief and other equitable remedies; and except as disclosed in Section 2.16(b) of the Disclosure Schedule, neither the Company, Galaxy Mall nor IMI nor, to the Knowledge of GFIthe Company, no event has occurred which would result in a breach Galaxy Mall or violation ofIMI, any other party to such Contract is, or a has received notice that it is, in violation or breach of or default under, under any GFI such Contract (in each case, or with or without notice or lapse of time or both), would be in violation or breach of or default under any such Contract) in any material respect.
(c) Except as disclosed in Section 2.16(c) of the Disclosure Schedule, (i) the execution, delivery and performance by the Company of this Agreement, and the consummation of the transactions contemplated hereby, will not (A) result in or give to any Person any right of termination, cancellation, acceleration or modification in or with respect to, (B) result in or give to any Person any additional rights or entitlement to increased, additional, accelerated or guaranteed payments under, or (C) result in the creation or imposition of any Lien upon the Company, Galaxy Mall or IMI or any of their Assets and Properties under, any Contract, and (ivii) each GFI Company, Galaxy Mall, and IMI are not parties to or bound by any Contract (including all modifications and amendments thereto and waivers thereunder) is that has been or could reasonably be expected to be, individually or in full force and effect the aggregate with respect to GFI or the GFI Subsidiariesany other Contracts, as applicable, and, materially adverse to the Knowledge Business or Condition of GFIthe Company, with respect to the other parties theretoGalaxy Mall, and have been delivered or made available to ParentIMI.
Appears in 3 contracts
Sources: Merger Agreement (Netgateway Inc), Merger Agreement (Galaxy Enterprises Inc /Nv/), Merger Agreement (Netgateway Inc)
Contracts. The Company has Previously Disclosed or provided (aby hard copy, electronic data room or otherwise) Except for this Agreementto the Investor or its representatives true, the CME Merger Agreement correct and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) complete copies of each of the GFI Disclosure Letter, neither GFI nor following to which the Company or any GFI Company Subsidiary is a party to or bound by(each, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:a “Material Contract”):
(i) any contract or agreement relating to Indebtednessindebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $250,000, except for those issued in the ordinary course of business;
(ii) any contracts under which GFI contract or agreement that constitutes a collective bargaining or other arrangement with any of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess of $500,000labor union;
(iii) any contract or agreement that is a “material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to contract” within the formation, creation, operation, management or control meaning of any partnership, strategic alliance or joint ventureItem 601(b)(10) of Regulation S-K;
(iv) any material lease or agreement relating to under which the Company or any strategic allianceof the Company Subsidiaries is lessee of, joint developmentor holds or operates, joint marketing, partnership or similar arrangementany property owned by any other Person with annual rent payments in excess of $250,000;
(v) any lease or agreement under which the Company or series any of related agreementsthe Company Subsidiaries is lessor of, including or permits any option agreementPerson to hold or operate, relating to any property owned or controlled by the acquisition Company or disposition any of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material agreement with (A) any Person directly or indirectly owningrespect, controlling or holding with power to vote, 5% or more the ability of the outstanding voting securities of GFI Company or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities Company Subsidiaries to engage in any line of which are directly business or indirectly ownedto compete, controlled whether by restricting territories, customers or held otherwise, or in any other material respect, with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI SubsidiaryPerson;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $250,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (including other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $250,000);
(ix) any exclusivity contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $250,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty or without more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) that any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any material respect either the type ability of business in which GFI the Company or any GFI Company Subsidiary may engage to solicit customers or the manner in which, or locations the localities in which which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of them may so engage in any business the Company Subsidiaries to own, operate, sell, transfer, pledge or could require the disposition otherwise dispose of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements entered into in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;; and
(xv) any Lease for the GFI Leased Real Property, and any other material contract or agreement that relates in would require any way to the occupancy consent or use approval of any a counterparty as a result of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effect.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) consummation of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiariestransactions contemplated by this Agreement. Each Material Contract (A) is legal, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or on the Company and the Company Subsidiaries which are a GFI Subsidiaryparty to such contract, as the case may be, (B) is in full force and effect and enforceable in accordance with its termsterms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the this Agreement, except in the cases of (B) and (C) as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and moratorium or other similar laws affecting the enforcement of general applicability relating to or affecting creditors’ rights or by general equity principlesin general. Neither the Company nor any of the Company Subsidiaries, (iii) nor to the Knowledge of GFIthe Company, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by this Agreement. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, that with or without notice or lapse of time would constitute a material breach or both)default or permit termination, and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI modification, or acceleration, under the GFI Subsidiaries, as applicable, and, to the Knowledge of GFI, with respect to the other parties thereto, and have been delivered or made available to ParentMaterial Contracts.
Appears in 3 contracts
Sources: Subscription Agreement, Subscription Agreement (FNB United Corp.), Subscription Agreement (FNB United Corp.)
Contracts. SCHEDULE 5.10 sets forth a list of all Contracts that are (ax) Except for this Agreementmaterial to the business or operations of Orion, the CME Merger Agreement taken as a whole, to either Orion Party; and (y) to which any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) of the GFI Disclosure LetterOrion Parties are a party, neither GFI nor any GFI Subsidiary is a party by which either are bound or to or bound by, nor are which any of their respective assetsassets or properties are subject, businesses as applicable, including but not limited to the following types of Contracts:
(a) any collective bargaining agreement;
(b) any Contract with any employee, consultant, advisor, officer or operations party todirector of Orion or Merger Sub;
(c) any Contract with a sales representative, manufacturer’s representative, distributor, dealer, broker, sales agency, advertising agency or other Person engaged in sales, distributing or promotional activities, or bound any Contract to act as one of the foregoing on behalf of any Person;
(d) any Contract which involves the payment or affected byreceipt of cash or other property, an unperformed commitment or goods or services, in each case having a value in excess of $10,000;
(e) any Contract pursuant to which either Orion Party (i) has made or will make any loans or advances; (ii) has or will have incurred debts, or receive benefits under:become a guarantor or surety, or pledged its credit on; or (iii) has or will have otherwise become responsible with respect to any undertaking of another (except for the negotiation or collection of negotiable instruments in transactions in the ordinary course of business consistent with past practice);
(f) any indenture, credit agreement, loan agreement, note, mortgage, security agreement, lease of real property or personal property or agreement for financing;
(g) any Contract involving a partnership, joint venture or other cooperative undertaking;
(h) any Contract involving any restrictions with respect to (i) any geographical area of operations; or (ii) scope or type of business of Orion or Merger Sub;
(i) any power of attorney or agency agreement relating or arrangement with any Person pursuant to Indebtednesswhich such Person is granted the authority to act for or on behalf of Orion or Merger Sub, or pursuant to which Orion or Merger Sub are granted the authority to act for or on behalf of any Person;
(iij) any contracts under which GFI or any of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess of $500,000;
(iii) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement Contract relating to any strategic alliancecorporate acquisition or disposition of Orion or Merger Sub, joint development, joint marketing, partnership or similar arrangement;
(v) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any subsidiary, division, line of business or real property (whether by mergerproperty, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements entered into in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for during the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed five years prior to the Date date of Delivery;this Agreement; and
(xik) any agreement under which GFI Contract not specified above that is otherwise material to the business or any GFI Subsidiaries operations of Orion, taken as a whole, to either Orion Party. To the Knowledge of the Orion Parties, Orion has granted any Person registration rights (including demand made available to Target true and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts complete copies of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Propertyeach document listed on SCHEDULE 5.10, and any other agreement that relates in any way to the occupancy or use a written description of each oral arrangement so listed is contained on SCHEDULE 5.10. The cancellation of any of Contracts listed on SCHEDULE 5.10 at any time by the GFI Leased Real Property; or
(xvi) any agreement the termination other party or breach of which or the failure to obtain consent in respect of constitutes a parties thereto would not have an Orion Material Adverse Effect.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or the GFI Subsidiaries, as applicable, and, to the Knowledge of GFI, with respect to the other parties thereto, and have been delivered or made available to Parent.
Appears in 3 contracts
Sources: Merger Agreement (Selena Pharmeceuticals Inc), Merger Agreement (Orion Acquisition Corp Ii), Merger Agreement (Orion Acquisition Corp Ii)
Contracts. (a) Except for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) 3.19 of the GFI Seller Disclosure Letter, neither GFI nor any GFI Subsidiary Schedule lists the following contracts and other agreements to which Seller is a party or is bound in connection with the Business on the date hereof and identifies each such contract (if any) in which (i) an officer, director, member, manager or employee of Seller or (ii) an Affiliate of Seller has or holds (directly or indirectly) a material interest (and Seller will update the Schedule as necessary at least five (5) days prior to or bound by, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:Closing):
(i) any agreement relating (or group of related agreements), for the lease of personal property to Indebtednessor from any Person;
(ii) any contracts under agreement (or group of related agreements) requiring capital expenditures or for the purchase or sale of raw materials, commodities, supplies, products or other personal property, or for the furnishing or receipt of services (including advertising and marketing services), the performance of which GFI will extend over a period of more than 30 days, result in a loss to Seller, or any of the GFI Subsidiaries has advanced or loaned any Person any amounts involve consideration in excess of $500,000100,000;
(iii) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance agreement concerning a partnership or joint venture;
(iv) any material agreement relating (or group of related agreements) under which Seller has created, incurred, assumed or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $500,000 or under which it has granted a Lien with respect to any strategic alliance, joint development, joint marketing, partnership or similar arrangementof the Acquired Assets;
(v) any agreement concerning confidentiality or series of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000noncompetition;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiarycollective bargaining agreement;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either for the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition employment of any material assets Key Business Employee providing annual salary (excluding bonus) in excess of $50,000 or line of business of GFI or any GFI Subsidiaryproviding severance benefits;
(viii) any agreement with a non-solicitation under which Seller has advanced or “most-favored-nations” pricing provision that purports loaned any amount to limit any of the Business Employees or restrict in any material respect GFI or any GFI SubsidiaryKey Business Employees outside the Ordinary Course of Business;
(ix) any agreement, other than such agreements entered into in the ordinary course of business, agreement under which (A) any Person (other than GFI the consequences of a default or termination could have a GFI Subsidiary) has directly materially adverse effect on the financial condition, operations, results of operations or indirectly guaranteed or provided an indemnity in respect future prospects of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000Business;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) letters of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior intent with respect to the Date construction and/or establishment of Delivery;contemplated Restaurants; and
(xi) any other agreement under (or group of related agreements) the performance of which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary annual consideration in excess of $3,000,000 in the aggregate per year;
(xiii) any material 250,000. Seller has delivered to Purchaser a correct and complete copy of each written agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effect.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) 3.19 of the GFI Seller Disclosure Letter together with Schedule and a written summary setting forth the GFI License Agreements are terms and conditions of each oral agreement referred to herein as in Section 3.19 of the “GFI Contracts.” Except as would not have a material impact on Seller Disclosure Schedule. With respect to each such agreement that is listed in Section 3.19 of the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its termsSeller Disclosure Schedule, except as may be limited by applicable bankruptcydescribed in Section 3.19 of the Seller Disclosure Schedule: (A) the agreement is legal, insolvencyvalid, reorganizationbinding, moratorium, fraudulent transfer enforceable and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, in full force and effect and was entered into on an arms length basis; (iiiB) to the Knowledge of GFISeller, no party is in breach or default, and no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time would constitute a breach or both)default, or permit termination, modification or acceleration, under the agreement; and (ivC) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or the GFI Subsidiaries, as applicable, and, to the Knowledge of GFISeller, with respect to no party has repudiated any provision of the other parties thereto, and have been delivered or made available to Parentagreement.
Appears in 3 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Ruths Chris Steak House, Inc.), Asset Purchase Agreement (Ruths Hospitality Group, Inc.)
Contracts. (a) Except for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) 4.14 of the GFI Disclosure Letter, neither GFI nor any GFI Schedule contains a list of the following written or oral contracts that are Acquired Contracts or to which an Acquired Subsidiary is party (the “Material Contracts”) (and each Material Contract is listed under a party heading in such Section that corresponds with the applicable clause among the following to or bound by, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:which such Material Contract relates):
(i) contract that involves the performance of services or delivery of goods or materials by the Business that is reasonably expected to result in revenue after the date hereof in excess of $100,000 in any agreement relating to Indebtednesstwelve month period (other than open purchase orders made in the Ordinary Course of Business);
(ii) any contracts under which GFI contract that involves the performance of services for, or any delivery of goods or materials to, the GFI Subsidiaries has advanced or loaned any Person any amounts Business that is reasonably expected to result in expenditures after the date hereof in excess of $500,00050,000 in any twelve month period (other than open sales orders made in the Ordinary Course of Business);
(iii) contract for the employment of Person by the Business on a full-time, part-time, consulting or other basis, including any material joint venturesuch contract that (A) provides annual cash or other compensation in excess of $100,000, partnership, limited liability company, shareholder(B) provides for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of (C) provides for any partnership, strategic alliance or joint ventureseverance payments;
(iv) contract that restricts the ability of Seller or any material agreement relating of its Affiliates to engage in any strategic alliancebusiness, joint developmentincluding the Business, joint marketing, partnership or similar arrangementcompete with any Person with respect to the Business or any other business;
(v) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition lease of any business tangible personal property to or real property (whether by merger, sale of stock, sale of assets or otherwise) for from any other Person and used in the Business with aggregate consideration annual rental payments exceeding $50,000 in excess of $2,000,000the most recently completed calendar year;
(vi) contract to pay or receive any material agreement with royalty or license fee or to license (Aeither as licensor or licensee) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more Intellectual Property (other than any non-exclusive license for the use of any commercially available off-the-shelf software which was entered into in the outstanding voting securities Ordinary Course of GFI or any GFI Subsidiary, (B) any Person 5% or more Business of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI SubsidiarySeller);
(vii) any agreement (including any exclusivity each mortgage agreement) that purports , deed of trust, security agreement, purchase money agreement, conditional sales contract, capital lease or other similar contract created or assumed by, or permitted to limit be created by written document made or restrict in any material respect either the type of business in which GFI accepted by, Seller or any GFI Acquired Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiarysale-leaseback arrangement pertaining to any real property or to equipment included in the Acquired Assets;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI each contract requiring Seller or any GFI SubsidiaryAcquired Subsidiary to reimburse any maker of a letter of credit or banker’s acceptance;
(ix) any agreementeach partnership, other than such agreements entered into in joint venture or similar contract relating to the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000Business;
(x) each contract with any other agreement distributor or amendment thereto that would be required to be filed as an exhibit to broker of any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under product or service offered by the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;Business; and
(xi) each contract containing any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggyform of most-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary favored pricing provision in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use favor of any supplier or customer of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse EffectBusiness.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Each Material Contract is a valid and binding agreement obligation of GFI Seller or a GFI the relevant Acquired Subsidiary, as enforceable against Seller or the case may be, enforceable relevant Acquired Subsidiary in accordance with its terms, terms except as such enforceability may be limited by (i) applicable insolvency, bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and moratorium or other similar laws of general applicability relating to or affecting creditors’ rights generally, and (ii) applicable equitable principles (whether considered in a proceeding at law or by general equity principlesin equity). Seller or the relevant Acquired Subsidiary is not in material violation or breach of or default under any Material Contract. To Seller’s Knowledge, (iii) the other parties to the Knowledge each Material Contract are not in material violation or breach of GFI, no or default thereunder. No event has occurred which that (with or without the passage of time or giving of notice) would result in constitute a material breach or violation default of, or a default underpermit termination, modification, acceleration or cancellation of, such Material Contract or of any GFI material right or liability thereunder. Neither Seller nor the relevant Acquired Subsidiary has waived any material right under such Material Contract. No party to such Material Contract (has terminated, modified, accelerated or canceled such Material Contract or any material right or liability thereunder or communicated in each case, with writing such party’s desire or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect intent to GFI do so. Seller or the GFI Subsidiariesrelevant Acquired Subsidiary has provided to Buyer a true, as applicable, andcorrect and complete copy of each written Material Contract or, to the Knowledge extent a Material Contract is oral, an accurate description of GFI, with respect to the other parties thereto, and have been delivered or made available to Parentmaterial terms thereof.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Qumu Corp), Asset Purchase Agreement
Contracts. (a) Neither the Company nor any of its Subsidiaries is a party to, and none of their respective properties or other assets is subject to, any Contract that is of a nature required to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act, other than any Contract that is filed as an exhibit to the Company SEC Documents.
(b) Except for Contracts filed in unredacted form as exhibits to the Company SEC Documents, and except for Contracts between the Company and its Subsidiaries or among Subsidiaries, Section 3.10(b) of the Company Disclosure Letter sets forth a correct and complete list as of the date of this Agreement, and the CME Merger Agreement Company has made available to Parent correct and any agreements contemplated by CME Merger Agreement complete copies (including all amendments, modifications, extensions, renewals, guaranties or other Contracts with respect thereto, but excluding all names, terms and conditions that have been redacted in compliance with applicable Laws governing the transactions contemplated thereby and any contract set forth in Section 2.19(a) sharing of the GFI Disclosure Letterinformation), neither GFI nor any GFI Subsidiary is a party to or bound by, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits underof:
(i) all Contracts of the Company or any agreement relating of its Subsidiaries having an aggregate value per Contract, or involving payments by or to Indebtednessthe Company or any of its Subsidiaries, of more than $1,000,000 on an annual basis;
(ii) any contracts under all Contracts to which GFI the Company or any of its Subsidiaries is a party, or by which the GFI Company, any of its Subsidiaries has advanced or loaned any Person of its Affiliates is bound, that contain a covenant materially restricting the ability of the Company or any amounts of its Subsidiaries (or which, following the consummation of the Merger, would materially restrict the ability of Parent or any of its Subsidiaries, including the Surviving Entity and its Subsidiaries) to compete in excess of $500,000any business or with any person or in any geographic area;
(iii) all material Contracts of the Company or any material joint venture, partnership, limited liability company, shareholder, or of its Subsidiaries with any Affiliate of the Company (other similar agreements or arrangements relating to the formation, creation, operation, management or control than any of any partnership, strategic alliance or joint ventureits Subsidiaries);
(iv) any material agreement relating (A) Contract to which the Company or any strategic allianceof its Subsidiaries is a party granting any license to Intellectual Property of the Company or any of its Subsidiaries that involves payments by the Company or any of its Subsidiaries with respect to such license of more than $500,000 on an annual basis, joint developmentand (B) other license (other than real estate) having an aggregate value per license, joint marketingor involving payments by the Company or any of its Subsidiaries, partnership or similar arrangementof more than $500,000 on an annual basis;
(v) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property all confidentiality agreements (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements those entered into in the ordinary course of business), under which agreements by the Company not to acquire assets or securities of a third party or agreements by a third party not to acquire assets or securities of the Company;
(Avi) any Person (other than GFI Contract having an aggregate value per Contract, or a GFI Subsidiary) has directly involving payments by or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI to the Company or any GFI Subsidiary of its Subsidiaries, of more than $500,000 on an annual basis that requires consent of or notice to a third party in the event of or with respect to the Merger, including in order to avoid a breach or termination of or loss of benefit under any such Contract;
(Bvii) GFI all material joint venture, partnership or other similar agreements involving co-investment with a third party to which the Company or any GFI Subsidiary has directly of its Subsidiaries is a party;
(viii) any Contract with a Governmental Authority which imposes any material obligation or indirectly guaranteed restriction on the Company or provided an indemnity in respect its Subsidiaries;
(ix) all leases, subleases, licenses or other Contracts pursuant to which the Company or any of liabilities, obligations its Subsidiaries use or commitments hold any material property involving payments by or to the Company or any of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose its Subsidiaries of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less more than $1,000,000500,000 on an annual basis;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Deliveryall material outsourcing Contracts;
(xi) any agreement under which GFI all Contracts with investment bankers, financial advisors, attorneys, accountants or other advisors retained by the Company or any GFI of its Subsidiaries has granted involving payments by or to the Company or any Person registration rights (including demand and piggy-back registration rights)of its Subsidiaries of more than $500,000 on an annual basis;
(xii) any agreement that involves expenditures or receipts of GFI all Contracts providing for the indemnification by the Company or any GFI Subsidiary in excess of $3,000,000 its Subsidiaries of any person, except for any such Contract that (i) is not material to the Company or any of its Subsidiaries and (ii) was entered into in the aggregate per year;ordinary course of business; and
(xiii) all Contracts pursuant to which any material agreement with indebtedness of the Company or any Governmental Entity;of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any indebtedness of any other person (other than the Company or any of its Subsidiaries) (except for such indebtedness or guarantees the aggregate principal amount of which does not exceed $1,000,000 on an annual basis and excluding trade payables arising in the ordinary course of business).
(xivi) None of the Company or any material agreement between of its Subsidiaries (x) is, or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and has received written notice or has Knowledge that any other agreement that relates in any way party to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination its Contracts is, in violation or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effect.
default (b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both)) under, or (y) has waived or failed to enforce any rights or benefits under, any Contract to which it is a party or any of its properties or other assets is subject, and (ivii) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or the GFI Subsidiaries, as applicable, and, to the Knowledge of GFIthe Company, there has occurred no event giving to others any right of termination, amendment or cancellation of (with respect or without notice or lapse of time or both) any such Contract except for violations, breaches, defaults, waivers or failures to enforce rights or benefits covered by clauses (i) or (ii) above that individually or in the other parties thereto, aggregate have not had and would not reasonably be expected to have been delivered or made available to Parenta Company Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Mgi Pharma Inc), Merger Agreement (Guilford Pharmaceuticals Inc)
Contracts. The Company has Previously Disclosed or provided (aby hard copy, electronic data room or otherwise) Except for this Agreementto the Investor or its representatives true, the CME Merger Agreement correct and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) complete copies of each of the GFI Disclosure Letter, neither GFI nor following to which the Company or any GFI Company Subsidiary is a party to or bound by(each, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:a “Material Contract”):
(i) any contract or agreement relating to Indebtednessindebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $250,000, except for those issued in the ordinary course of business;
(ii) any contracts under which GFI contract or agreement that constitutes a collective bargaining or other arrangement with any of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess of $500,000labor union;
(iii) any contract or agreement that is a “material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to contract” within the formation, creation, operation, management or control meaning of any partnership, strategic alliance or joint ventureItem 601(b)(10) of Regulation S-K;
(iv) any material lease or agreement relating to under which the Company or any strategic allianceof the Company Subsidiaries is lessee of, joint developmentor holds or operates, joint marketing, partnership or similar arrangementany property owned by any other Person with annual rent payments in excess of $250,000;
(v) any lease or agreement under which the Company or series any of related agreementsthe Company Subsidiaries is lessor of, including or permits any option agreementPerson to hold or operate, relating to any property owned or controlled by the acquisition Company or disposition any of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material agreement with (A) any Person directly or indirectly owningrespect, controlling or holding with power to vote, 5% or more the ability of the outstanding voting securities of GFI Company or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities Company Subsidiaries to engage in any line of which are directly business or indirectly ownedto compete, controlled whether by restricting territories, customers or held otherwise, or in any other material respect, with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI SubsidiaryPerson;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $250,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (including other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $250,000);
(ix) any exclusivity contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $250,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty or without more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) that any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any material respect either the type ability of business in which GFI the Company or any GFI Company Subsidiary may engage to solicit customers or the manner in which, or locations the localities in which which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of them may so engage in any business the Company Subsidiaries to own, operate, sell, transfer, pledge or could require the disposition otherwise dispose of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements entered into in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;; and
(xv) any Lease for the GFI Leased Real Property, and any other material contract or agreement that relates in would require any way to the occupancy consent or use approval of any a counterparty as a result of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effect.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) consummation of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiariestransactions contemplated by this Agreement. Each Material Contract (A) is legal, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or on the Company and the Company Subsidiaries which are a GFI Subsidiaryparty to such contract, as the case may be, (B) is in full force and effect and enforceable in accordance with its termsterms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents, except in the cases of (B) and (C) as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and moratorium or other similar laws affecting the enforcement of general applicability relating to or affecting creditors’ rights or by general equity principlesin general. Neither the Company nor any of the Company Subsidiaries, (iii) nor to the Knowledge of GFIthe Company, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, that with or without notice or lapse of time would constitute a material breach or both)default or permit termination, and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI modification, or acceleration, under the GFI Subsidiaries, as applicable, and, to the Knowledge of GFI, with respect to the other parties thereto, and have been delivered or made available to ParentMaterial Contracts.
Appears in 2 contracts
Sources: Investment Agreement (FNB United Corp.), Investment Agreement (FNB United Corp.)
Contracts. (a) Except for As of the date of this Agreement, neither the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) of the GFI Disclosure Letter, neither GFI Company nor any GFI Subsidiary of its Subsidiaries is a party to or bound by, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:
(i) any agreement relating to Indebtedness;
(ii) any contracts under which GFI or any of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess of $500,000;
(iii) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(v) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements entered into in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto Contract that would be required to be filed by the Company as an exhibit a “material contract” pursuant to any GFI SEC Document (as described in Items 601(b)(4) and Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) any Contract that has not been filed (A) restricts the ability of the Company or any of its Subsidiaries (or, after the Closing, would restrict Parent, TopCo or any of their respective Subsidiaries) in any material respect to compete with any other person or acquire or dispose of the securities of another person and (B) is material to the Company and its Subsidiaries, taken as an exhibit a whole;
(iii) any loan, mortgage, note, debenture, bond, indenture or other similar Contract pursuant to which any Indebtedness of the Company or incorporated any of its Subsidiaries, in each case in excess of $500.0 million, is outstanding or may be incurred, other than any such Contract solely between or among any of the Company and any of its Subsidiaries;
(iv) any Contract that is related to the governance or operation of any joint venture, partnership or similar arrangement, other than such Contract solely between or among any of the Company and any of its Subsidiaries;
(v) any Contract expressly limiting or restricting the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests, as the case may be;
(vi) any Contract that by reference its terms calls for aggregate payments by the Company or any of its Subsidiaries of more than $500.0 million in any fiscal year period or $1.0 billion in the GFI SEC Documents filed prior aggregate over the term of such Contract, except for any such Contract that may be canceled by the Company, without any material penalty or other liability to the Date Company or any of Deliveryits Subsidiaries, upon notice of 180 days or less;
(vii) any Contract that involves, or is reasonably expected in the future to involve, annual revenues of $500.0 million in the aggregate;
(viii) any material Contract, other than Contracts for transportation services to be provided for FERC-regulated Natural Gas Act or Interstate Commerce Act transportation services pursuant to an open season, that contains a “most favored nation” or any similar term for the benefit of a third party that restricts the business of the Company (or would, after the Closing, restrict the business of Parent, TopCo or any of their respective Subsidiaries) in a material manner;
(ix) any collective bargaining agreement;
(x) any Contract under which the Company or any of its Subsidiaries has advanced or loaned any amount of money to any of its current or former directors, officers, employees or consultants, in each case with a principal amount in excess of $100,000;
(xi) any agreement under which GFI material Contract that includes any Affiliate of the Company (other than a Subsidiary of the Company) as a counterparty or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights)third party beneficiary;
(xii) any agreement that involves expenditures Contract to acquire all or receipts a portion of GFI the capital stock, business, property or assets of any GFI Subsidiary other person for an amount of cash (or value of non-cash consideration) in excess of $3,000,000 in the aggregate per year500.0 million;
(xiii) any material agreement with any Governmental Entity;Contract in favor of directors or executive officers relating to employment or compensation or providing rights to indemnification; or
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for Contract the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination loss or breach of which or the failure would reasonably be expected to obtain consent in respect of constitutes have a Company Material Adverse Effect.
. Each such Contract described in clauses (bi) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(athrough (xiv) of the GFI Disclosure Letter together with the GFI License Agreements are above is referred to herein as a “Company Specified Contract”. The Company has delivered or made available to Parent true and complete copies of all Company Specified Contracts. Each of the “GFI Contracts.” Except as would not have a material impact Company Specified Contracts is valid and binding on the respective businesses Company or the Subsidiary of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is Company party thereto and, to the Knowledge of GFIthe Company, no each other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both)thereto, and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect, except for such failures to be valid and binding or to be in full force and effect with respect that have not had and would not reasonably be expected to GFI have, individually or in the GFI Subsidiariesaggregate, as applicable, anda Company Material Adverse Effect. There is no default under any Company Specified Contract by the Company or any of its Subsidiaries or, to the Knowledge of GFIthe Company, with respect to the by any other parties party thereto, in each case except for such defaults that have not had and have been delivered would not reasonably be expected to have, individually or made available to Parentin the aggregate, a Company Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Williams Companies Inc), Merger Agreement (Williams Companies Inc)
Contracts. (a) Except for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract as set forth in Section 2.19(a) of the GFI Disclosure Letter, neither GFI the Company nor any GFI Subsidiary is a party to of its Subsidiaries has any current or bound byfuture rights, nor are responsibilities, obligations or liabilities, in each case as of the date of this Agreement, under any of their respective assetsthe following (each, businesses a “Material Contract”):
(a) any Contract relating to Intellectual Property that is material to the Company and its Subsidiaries, taken as a whole;
(b) any Contract that would be required to be filed or operations party tofurnished by the Company pursuant to Item 19 and paragraph 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act;
(c) any Contract involving payments by the Company or any of its Subsidiaries in excess of US$7 million in the aggregate under each such Contract;
(d) any Contract, including any distribution agreements, containing covenants directly or explicitly limiting in any material respect the freedom of the Company and its Subsidiaries as a whole to compete in any geographic area, industry or line of business or with any Person or to offer any of its products or services, or bound any material exclusivity agreement relating to Intellectual Property, business opportunity or affected byany resources or assets of the Company or any of its Subsidiaries;
(e) any indenture, mortgage, promissory note, loan agreement, guaranty or receive benefits under:other agreement or commitment for the borrowing of money or pledging or granting a security interest in respect of an aggregate amount of US$5 million or more;
(f) share or stock redemption or purchase agreements or other agreements affecting or relating to the share capital of the Company or any of its Subsidiaries, including, without limitation, any agreement with any shareholder of the Company or any of its Subsidiaries which includes, without limitation, anti-dilution rights, voting arrangements or operating covenants;
(g) any royalty or dividend arrangement that involves the payment by the Company of more than US$4 million annually based on the revenues or profits of the Company or any of its Subsidiaries or based on the revenues or profits derived from any material contract;
(h) any material acquisition, merger, asset purchase or other similar agreement;
(i) any agreement relating Contract under which the Company or any of its Subsidiaries has granted any Person any registration rights, or any right of first refusal, first offer or first negotiation with respect to Indebtednessany Securities or securities of any Subsidiaries of the Company;
(iij) any contracts under which GFI or any of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess of $500,000;
(iii) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements Contract relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership limited liability company or similar arrangement;
(v) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements entered into in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvik) any agreement Contract that contains a put, call or similar right pursuant to which the termination Company or breach any of which or the failure to obtain consent in respect of constitutes a Material Adverse Effect.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or its Subsidiaries could be required to be listed in Section 2.19(a) purchase or sell, as applicable, any equity interests of any Person. Each of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary Material Contracts is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiaryin full force and effect, as the case may be, is enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) subject to the Knowledge Bankruptcy and Equity Exception. Neither the Company nor any of GFIits Subsidiaries has violated or breached, or committed any default under, any Material Contract, and, to the Company’s knowledge, no other Person has violated or breached, or committed any default under any Material Contract, except for violations, breaches or defaults which would not, individually or in the aggregate, in each case, reasonably be expected to have a Material Adverse Effect. To the Company’s knowledge, no event has occurred which would result in a breach occurred, and no circumstance or violation ofcondition exists, or a default under, any GFI Contract that (in each case, with or without notice or lapse of time or both)) would reasonably be expected to: (A) result in a material violation or breach of any of the provisions of any Material Contract, and (ivB) give any Person the right to declare a default or exercise any remedy under any Material Contract, (C) give any Person the right to accelerate the maturity or performance of any Material Contract or (D) give any Person the right to cancel, terminate or modify any Material Contract, except, in each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or the GFI Subsidiariescase, as applicable, and, would not reasonably be expected to the Knowledge of GFI, with respect to the other parties thereto, and have been delivered or made available to Parenta Material Adverse Effect.
Appears in 2 contracts
Sources: Investment Agreement (Alibaba Group Holding LTD), Investment Agreement (Ali YK Investment Holding LTD)
Contracts. (a) Except for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a3.13(a) of the GFI Company Disclosure LetterLetter sets forth, neither GFI nor as of the date hereof, a true, correct and complete list of each Contract (other than any GFI Company Real Property Lease or Benefit Plan) that is in effect and to which the Company or any Company Subsidiary is a party to or bound bywhich binds their respective properties or assets, nor are and that falls within any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits underthe following categories:
(i) any agreement relating joint venture, partnership, or strategic alliance Contract with a Third Party member that is material to Indebtednessthe business of the Company and the Company Subsidiaries, taken as a whole, in which the Company or any Company Subsidiary owns an Equity Interest;
(ii) any contracts under which GFI Contract that requires aggregate capital expenditures by the Company or any of the GFI Company Subsidiaries has advanced or loaned any Person any amounts in an amount in excess of four million dollars ($500,000;
(iii4,000,000) any material joint ventureper annum individually, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(v) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with than (A) any Person directly purchase order or indirectly owningContract for supply, controlling inventory or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements entered into trading stock acquired in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI any ordinary course Contracts with respect to land acquisitions, land development and construction;
(iii) any settlement, conciliation or similar Contract (A) with any Governmental Entity, (B) that requires the Company or any GFI of the Company Subsidiaries to pay any monetary consideration of more than four hundred thousand dollars ($400,000) 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 has (or, to the Knowledge of the Company, Parent or any of its other affiliates from and after the Closing) as currently operated;
(iv) 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 Person, in each case, in any geographic area;
(v) any Contract (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 Company and any wholly owned Company Subsidiary) and that are material to the business of the Company and the Company Subsidiaries, taken as a whole, (B) for any pending acquisition, directly or indirectly guaranteed (by merger or provided an indemnity in respect otherwise) of liabilities, obligations or commitments a portion of any other Person the assets (other than GFI goods, products or a GFI Subsidiaryservices in the ordinary course of business) or Equity Interests of any Person for aggregate consideration in excess of two million dollars ($2,000,000) pursuant to which the Company or any Company Subsidiary has continuing “earn-out” or other similar contingent payment obligations following the date hereof in each case other than endorsements for the purpose excess of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor two million dollars ($2,000,000) or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities ActC) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted gives any Person registration rights the right to acquire any assets of the Company or the Company Subsidiaries (including demand and piggy-back registration rightsexcluding ordinary course commitments to purchase homes, lots, goods, products or services) after the date hereof with a total consideration of more than two million dollars ($2,000,000);
(xiivi) any agreement Contract that involves expenditures is an indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or receipts of GFI other Contract providing for or securing indebtedness for borrowed money or deferred payment (in each case, whether incurred, assumed, guaranteed or secured by any GFI Subsidiary asset) in an outstanding principal amount in excess of one million dollars ($3,000,000 in 1,000,000), other than any such contract between the aggregate per year;
(xiii) Company or any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for Company Subsidiary, on the GFI Leased Real Propertyone hand, and any other agreement that relates in Company Subsidiary, on the other hand;
(vii) any way to Contract for (A) the occupancy or use sale of any land parcels (whether or not developed) of the GFI Leased Real PropertyCompany or a Company Subsidiary with a purchase price in excess of four million dollars ($4,000,000) (other than individual home sales in the ordinary course of business), (B) the purchase of any land parcels (whether or not developed) of the Company or a Company Subsidiary or (C) the option to purchase any land parcels (whether or not developed) of the Company or a Company Subsidiary, in the case of clauses (B) and (C), with a total purchase price for the land parcels subject thereto in excess of eight million dollars ($8,000,000) (other than individual home sales in the ordinary course of business); orand
(xviviii) any agreement material Contract (A) pursuant to which the termination Company or breach any Company Subsidiary receives a license to use any material Intellectual Property that is used in the business (other than licenses for “off-the-shelf” or other software widely available on generally standard terms and conditions) or (B) pursuant to which the Company or any Company Subsidiary grants to a third party a license to use any material Company Intellectual Property. Each Contract of which the type described in this Section 3.13(a) is referred to herein as a “Company Material Contract.” True and complete copies of each Company Material Contract in effect as of the date hereof have been made available to Parent (including pursuant to agreed-upon procedures to protect competitively sensitive information) or publicly filed with the failure to obtain consent in respect of constitutes a Material Adverse EffectSEC.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have and would not reasonably be expected to have, individually or in the aggregate, a material impact on the respective businesses of GFI and the GFI SubsidiariesCompany Material Adverse Effect, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Company Material Contract is a valid legal, valid, binding and binding agreement enforceable obligation of GFI the Company or a GFI Subsidiary, as the case may be, enforceable Company Subsidiary party thereto and is in accordance with its terms, full force and effect (except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer the Enforceability Exceptions) and similar laws (ii) none of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default underCompany, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or the GFI Subsidiaries, as applicable, andCompany Subsidiary or, to the Knowledge of GFIthe Company, with respect to the other parties thereto, and have been delivered any counterparty is in breach or made available to Parentdefault under any Company Material Contract.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (William Lyon Homes), Merger Agreement (Taylor Morrison Home Corp)
Contracts. (a) Except for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) 4.11 of the GFI Company Disclosure LetterSchedule sets forth a complete list of each of the following agreements to which the Company, neither GFI nor any GFI Company Subsidiary or any Nonprofit Organization is a party to or bound by, nor are by which any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits underthem is bound:
(i) any agreement relating to Indebtedness;
(ii) any contracts under which GFI or any of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess of $500,000;
(iii) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(v) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements entered into in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto contract that would be required to be filed by the Company as an exhibit a material contract pursuant to any GFI SEC Document (as described in Items 601(b)(4) and Item 601(b)(10) of Regulation S-K under K;
(ii) contract containing covenants of the Securities ActCompany, any Company Subsidiary or Nonprofit Organization not to compete in any line of business, industry or geographical area or which affects the ability of an Affiliate of the Company, any Company Subsidiary or any Nonprofit Organization from competing in any line of business, industry or geographical area;
(iii) that has not been filed as an exhibit contract which does, or could reasonably be construed to, create a partnership or joint venture or similar arrangement with respect to any material business of the Company, any Company Subsidiary or incorporated by reference Nonprofit Organization;
(iv) contract that, individually or in the GFI SEC Documents filed prior aggregate, could or could reasonably be expected to prevent, materially delay or materially impede the Date Company’s ability to consummate the transactions contemplated by this Agreement;
(v) indenture, credit agreement, loan agreement, guarantee, note or other evidence of DeliveryIndebtedness or agreement providing for Indebtedness in excess of the Material Amount;
(vi) contract (other than the ANM Merger Agreement, the Sedora Merger Agreement and this Agreement) for the acquisition or sale of assets (whether by merger, consolidation, acquisition of stock or assets or otherwise) in excess of the Material Amount;
(vii) collective bargaining agreement, employment agreement, offer letter, or severance or termination or transition agreement, in each case providing for annual payments of more than the Material Amount;
(viii) agreement (or group of related agreements) for the lease of personal property providing for annual payments of more than the Material Amount;
(ix) contract (other than purchase orders) for the purchase or sale of materials, supplies, goods, equipment, products, merchandise or other assets, or for the furnishing or receipt of services, with any of the top 20 vendors of the Company, the Company Subsidiaries and the Nonprofit Organizations, based on aggregate payments made by the Company, the Company Subsidiaries and the Nonprofit Organizations to such vendors, taken as a whole, during the fiscal year ending June 30, 2005;
(x) contract that contains a put, call, right of first refusal or similar right pursuant to which the Company, any Company Subsidiary or any Nonprofit Organization could be required to purchase or sell, as applicable, any Equity Interests of any Person or assets that have a fair market value or purchase price of more than the Material Amount;
(xi) any settlement or conciliation agreement under or similar agreement (except for benefit plans and individual employee agreements) or order or consent of a Governmental Authority to which GFI the Company or any GFI of the Company Subsidiaries has granted or Nonprofit Organizations is a party involving future performance by the Company or any Person registration rights (including demand and piggy-back registration rights)Company Subsidiary or Nonprofit Organization which is material to the Company;
(xii) any agreement that involves expenditures other contract (other than the ANM Merger Agreement, the Sedora Merger Agreement, this Agreement or receipts purchase orders in the Ordinary Course of GFI Business) pursuant to which the Company or any GFI Company Subsidiary or Nonprofit Organization has incurred a Liability in excess of $3,000,000 the Material Amount or providing for payments from the Company or any Company Subsidiary or Nonprofit Organization in excess of the aggregate per yearMaterial Amount or the consequences of a default or termination of which could have a Material Adverse Effect;
(xiii) contract by which the Company, any Company Subsidiary or any Nonprofit Organization licenses to or from any Person any material agreement with any Governmental EntityIntellectual Property or that otherwise concerns material Intellectual Property or that otherwise concerns material Intellectual Property;
(xiv) agreement with any material agreement between shareholder, former shareholder, affiliate, director or among Affiliates officer of GFI;the Company, any Company Subsidiary or any Nonprofit Organization, or any relative of any of the foregoing; and
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real PropertyProperty Leases; orand
(xvi) any agreement the termination Tax sharing agreements or breach of which or the failure similar agreements with respect to obtain consent in respect of constitutes a Material Adverse EffectTaxes.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed Each such contract described in Section 2.19(a4.11(a) of the GFI Disclosure Letter together with the GFI License Agreements are is referred to herein as the a “GFI ContractsMaterial Contract.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, With respect to each Material Contract: (i) neither GFI the Company nor any GFI Company Subsidiary or Nonprofit Organization is (and, to the Knowledge knowledge of GFIthe Company, no other party is, ) in or is alleged to be in breach of or violation of, or in default under, any GFI under such Material Contract, ; (ii) each GFI Contract is a valid and binding agreement neither the Company nor any Company Subsidiary or Nonprofit Organization has given or received any written notice or claim of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, default under such Material Contract; (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each casethat, with or without notice or lapse of time or both), and would result in a breach or a default under such Material Contract; (iv) each GFI such Material Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI effect, and is the valid, binding and enforceable obligation of the Company, the Company Subsidiaries or the GFI SubsidiariesNonprofit Organizations, as applicable, and, and to the Knowledge knowledge of GFIthe Company, with respect to of the other parties thereto; (v) the consummation of the transactions contemplated by this Agreement will not result in such Material Contract failing to continue in full force and effect after the consummation of such transactions without penalty or other adverse consequence; (vi) no party has repudiated any provision of such Material Contract; and (vii) except as set forth in Section 4.11(b) to the Company Disclosure Schedule, and have been delivered such Material Contract does not contain any “change of control” or similar provision that would be triggered by, or contain an assignment prohibition or similar provision that would prohibit, the transactions contemplated by this Agreement. The Company has made available to ParentAcquiror true, correct and complete copies of each Material Contract, including all material amendments thereto.
Appears in 2 contracts
Sources: Merger Agreement (Westland Development Co Inc), Merger Agreement (Westland Development Co Inc)
Contracts. Except as otherwise disclosed in Schedules 3.13 (Real Property), 3.14(Intellectual Property), 3.20 (Insurance), 3.23 (Employment) and 3.27 (Customers and Suppliers) of the Disclosure Letter, Schedule 3.17 of the Disclosure Letter lists each Contract to which any Acquired Entity is a party which:
(a) Except is for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) lease of the GFI Disclosure Letter, neither GFI nor any GFI Subsidiary is a party personal property to or bound by, nor are from any Person providing for lease payments in excess of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:
(i) any agreement relating to Indebtedness£100,000 per annum;
(iib) any contracts under is for the purchase or sale of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which GFI will extend over a period of more than one year, that is known to result in a loss to Acquired Entity on completion of such Acquired Entities’ obligations, or any of the GFI Subsidiaries has advanced or loaned any Person any amounts involve consideration in excess of $500,000£100,000;
(iiic) any material joint venture, partnership, concerns an investment or interest in a limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(vd) any agreement Contract under which it has created, incurred, assumed, or series of related agreements, including guaranteed any option agreement, relating to the acquisition Liability for borrowed money or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration capitalized lease in excess of $2,000,000£100,000, or under which it has imposed or suffered to exist an Encumbrance on any of its assets;
(vie) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI SubsidiaryContract concerning non-competition;
(viif) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI Seller or any GFI Subsidiary may engage or of their Affiliates (other than the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI SubsidiaryAcquired Entities) is also a party;
(viiig) any agreement with is a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiarycollective bargaining Contract;
(ixh) advances or loans or guarantees any agreement, other than such agreements entered into loan in the ordinary course any amount to any of business, under which (A) any Person (other than GFI its directors or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI officers or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect Seller or, outside the Ordinary Course of liabilitiesBusiness, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000to its employees that are not Sellers;
(xi) any Contract for the employment of any individual on a full-time, part-time, consulting, independent contractor or other agreement basis providing annual compensation in excess of £50,000 or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Deliveryproviding severance benefits;
(xij) the performance of which involves consideration payable by any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary Acquired Entity in excess of $3,000,000 in the aggregate per year;£100,000; and
(xiiik) any material agreement with any Governmental Entity;
is outside the Ordinary Course of Business. Management Sellers have delivered to Buyer a correct and complete copy of each written Contract (xivas amended to date) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effect.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) Schedule 3.17 of the GFI Disclosure Letter together with and a written summary setting forth the GFI License Agreements are terms and conditions of each oral Contract required to be referred to herein as in Schedule 3.17 of the “GFI Contracts.” Except as would not have a material impact Disclosure Letter. With respect to each such Contract:
(A) the Contract is legally binding on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, parties to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is it in full force and effect in accordance with respect its respective terms;
(B) to GFI the Management Sellers’ Knowledge, the Contract will continue in full force and effect on identical terms following the consummation of the Transactions;
(C) to the Management Sellers’ Knowledge, no party is in material breach, and no event has occurred which, with notice or lapse of time, would constitute a material breach, under the Contract;
(D) no party to the Contract has repudiated, or advised the Acquired Entities or the GFI SubsidiariesManagement Sellers in writing that it intends to repudiate, as applicable, any provision of the Contract; and,
(E) no party to the Knowledge Contract has notified the Acquired Entities or any of GFI, with respect the Management Sellers in writing that they intend to terminate the Contract or that they do not intend to renew the Contract when it comes to the other parties thereto, and have been delivered or made available to Parentend of its current term.
Appears in 2 contracts
Sources: Investment, Shareholders’ and Stock Purchase Agreement (Mens Wearhouse Inc), Investment, Shareholders’ and Stock Purchase Agreement (Mens Wearhouse Inc)
Contracts. (a) Except for this Agreement, Schedule 3.14(a) lists all written contracts and other agreements Related to the CME Merger Agreement and Business to which ROI or any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) of the GFI Disclosure Letter, neither GFI nor any GFI Subsidiary its Subsidiaries is a party to or bound by, nor are by which any of their respective assetsproperties or assets are bound, businesses or operations party tohaving the following description(s) (collectively, or bound or affected by, or receive benefits under:the "Material Contracts"):
(i) any agreement relating (or group of related agreements) Related to Indebtednessthe Business for the lease of personal property to or from any Person providing for lease payments in excess of $10,000 per annum;
(ii) any contracts under agreement (or group of related agreements) Related to the Business for the purchase or sale of supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which GFI will extend over a period of more than one year or any of the GFI Subsidiaries has advanced or loaned any Person any amounts involve consideration in excess of $500,00010,000;
(iii) any material agreement Related to the Business concerning a partnership or joint venture, partnership, limited liability company, shareholder, venture or other similar agreements contract or arrangements relating to the formationagreement involving a sharing of profits, creationlosses, operationcosts or liabilities by ROI, management Seller or control any of their Affiliates with any partnership, strategic alliance or joint ventureother Person;
(iv) any material agreement relating to (or group of related agreements) under which ROI or any strategic allianceof its Subsidiaries has created, joint developmentincurred, joint marketingassumed, partnership or similar arrangementguaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $10,000 or under which it has imposed an Encumbrance on any of Transferred Assets, tangible or intangible;
(v) any material agreement or series of related agreements, including any option agreement, relating Related to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000Business concerning confidentiality;
(vi) any material agreement of ROI or Seller with (A) any Person directly or indirectly owning, controlling or holding with power of Seller's Affiliates which is Related to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI SubsidiaryBusiness;
(vii) any agreement Related to the Business which contains any provision or covenant limiting (including any exclusivity agreementA) that purports the ability of Seller to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any line of business, to compete with any Person, to do business with any Person in any location or could require to employ any Person, (B) the disposition ability of any material assets Person to compete with or line obtain products or services from Seller or (C) the ability of Seller to do business of GFI other than with a specified Person or any GFI SubsidiaryPersons;
(viii) any collective bargaining agreement with a non-solicitation or “most-favored-nations” pricing provision that purports and any other agreements relating to limit or restrict in any material respect GFI or any GFI Subsidiaryorganized labor;
(ix) any agreement, other than such agreements entered into in agreement of Seller for the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect employment of any liabilitiesindividual on a full-time, obligations part-time, consulting, or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary basis providing annual compensation in excess of $3,000,000 20,000 or providing severance benefits in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates excess of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effect$3,000.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or the GFI Subsidiaries, as applicable, and, to the Knowledge of GFI, with respect to the other parties thereto, and have been delivered or made available to Parent.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Return on Investment Corp), Asset Purchase Agreement (Return on Investment Corp)
Contracts. (a) Except for this Agreement, the CME Merger Agreement Asset Disclosure Schedule 4.14(a) contains a true and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) complete listing of the GFI Disclosure Letter, neither GFI nor any GFI Subsidiary is following contracts and other agreements with respect to the ownership and operation of the Assets (each such contract or agreement being referred to herein as a party to or bound by, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:“Material Contract”):
(i) any agreement relating to IndebtednessAny natural gas gathering or transportation agreement;
(ii) any contracts under which GFI Any agreement (or any group of related agreements with the GFI Subsidiaries has advanced same Person) for the lease of personal property to or loaned from any Person any amounts providing for lease payments in excess of $500,000250,000 per annum;
(iii) any material joint ventureAny agreement (or group of related agreements with the same Person) for the purchase or sale of raw materials, partnershipcommodities, limited liability companysupplies, shareholderproducts or other personal property, or other similar agreements for the furnishing or arrangements relating receipt of services, the performance of which is reasonably expected to the formation, creation, operation, management or control involve annual consideration in excess of any partnership, strategic alliance or joint venture$250,000;
(iv) any material Any agreement concerning a partnership, joint venture, investment or other arrangement (A) involving a sharing of profits or losses relating to all or any strategic allianceportion of the Assets, joint developmentor (B) requiring EQT Gathering to invest funds in or make loans to, joint marketingor purchase any securities of, partnership another Person, venture or similar arrangementother business enterprise relating to the Assets;
(v) any Any agreement (or series group of related agreements, including any option agreement, relating agreements with the same Person) with respect to the acquisition creation, incurrence, assumption, or disposition guaranteeing of any business indebtedness for borrowed money, or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000any capitalized lease obligation;
(vi) Any agreement that prohibits or otherwise materially limits the ability of an owner of the Assets to compete in any material agreement respect in any line of business or with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more in any material geographic area during any period of time after the Closing of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI SubsidiaryAsset Contribution;
(vii) any Any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI with EQT Gathering or any GFI Subsidiary may engage Affiliate (other than EQM and its Subsidiaries) to the extent applicable to the Assets and which individually involves annual revenues or the manner or locations payments in which any excess of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary$250,000;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI SubsidiaryAny collective bargaining agreement;
(ix) any agreement, other than such agreements entered into in the ordinary course of business, Any lease under which (A) any Person (other than GFI EQT Gathering is the lessor or a GFI Subsidiary) has directly lessee of real property that provides for an annual base rental to or indirectly guaranteed or provided an indemnity in respect from EQT Gathering of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less more than $1,000,000250,000;
(x) any other agreement Any easement agreement, right-of-way agreement, license or amendment thereto that would be required to be filed as permit involving an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) annual payment of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Deliverymore than $250,000;
(xi) any Any agreement under which GFI that governs the use or any GFI Subsidiaries has granted any Person registration rights development of Intellectual Property Assets (including demand and piggyother than off-back registration rightsthe-shelf software license agreements);
(xii) Any agreement under which the consequences of a default or termination would reasonably be expected to have a Gathering System Material Adverse Effect; or
(xiii) Any other agreement (or group of related agreements with the same Person) not enumerated in this Section 4.14, the performance of which by any agreement that party thereto involves expenditures or receipts of GFI or any GFI Subsidiary consideration in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effect250,000.
(b) The agreements, commitments, arrangements EQT Gathering has made available to EQM and/or EQM Gathering Opco a correct and plans, whether written or oral, listed or required to be listed in Section 2.19(a) complete copy of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contractseach Material Contract.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries,
(i) neither GFI nor any GFI Subsidiary Each Material Contract, and each of the other Transferred Contracts, is andlegal, valid and binding on and enforceable against EQT Gathering, and to the Knowledge of GFIEQT Gathering, no against the other party isparties thereto, and is in full force and effect; (ii) EQT Gathering is not in breach or violation ofdefault, and no event has occurred which with notice or in lapse of time would constitute a breach or default underby EQT Gathering or permit termination, modification or acceleration under any GFI Contract, (ii) each GFI Material Contract is a valid and binding agreement or under any of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, other Transferred Contracts; (iii) to the Knowledge of GFIEQT Gathering, no other party to any Transferred Contract is in breach or default, and no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time would constitute a breach or both)default by such other party, or permit termination, modification or acceleration under any Transferred Contract other than in accordance with its terms, nor has any other party repudiated any provision of any Transferred Contract; and (iv) except as set forth on Asset Disclosure Schedule 4.14(c), following the consummation of the transactions contemplated by this Agreement, each GFI Material Contract (including all modifications and amendments thereto each of the other Transferred Contracts will continue to be legal, valid and waivers thereunder) is binding and in full force and effect with respect on identical terms.
(d) EQT Gathering has not given to GFI or the GFI Subsidiariesreceived from any other Person any notice or other communication (whether oral or written) regarding any actual, as applicablealleged, andpossible or potential violation or breach of, or default under, any Material Contract that continues to the Knowledge of GFI, with respect to the other parties thereto, and have been delivered or made available to Parentbe unresolved.
Appears in 2 contracts
Sources: Contribution and Sale Agreement (EQT Midstream Partners, LP), Contribution and Sale Agreement
Contracts. Except as disclosed in the applicable subsection of Section 3.16 of the Company Disclosure Schedule (awhich is arranged in subsections numbered (i) Except for to (xiv) to correspond to the subsections of this AgreementSection 3.16 of the Company Disclosure Schedule), the CME Merger Agreement and any agreements contemplated Company is not bound by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) of the GFI Disclosure Letter, neither GFI nor any GFI Subsidiary is a party to or bound by, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:
(i) any agreement relating Contractual Obligation (or group of related Contractual Obligations) for the purchase, sale, construction, repair or maintenance of inventory, raw materials, commodities, supplies, goods, products, equipment or other property, or for the furnishing or receipt of services, in each case, the performance of which will extend over a period of more than one year or which provides for (or would be reasonably expected to Indebtednessinvolve) annual payments to or by the Company in excess of $100,000 or aggregate payments to or by the Company in excess of $200,000;
(ii) any contracts under which GFI or any of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess of $500,000;
(iii) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(v) any agreement or series of related agreements, including any option agreement, Contractual Obligation relating to the acquisition or disposition by the Company of (A) any business or real property (whether by merger, consolidation or other business combination, sale of stocksecurities, sale of assets or otherwise) for aggregate consideration or (B) any material Asset (other than in excess the Ordinary Course of $2,000,000Business);
(iii) any Contractual Obligation concerning or consisting of a partnership, limited liability company, joint venture or similar agreement;
(iv) any Contractual Obligation under which the Company has permitted any Asset to become Encumbered (other than by a Permitted Encumbrance);
(v) any Contractual Obligation (A) under which the Company has created, incurred, assumed or guaranteed any Debt or (B) under which any other Person has guaranteed any Debt of the Company;
(vi) any material agreement with Contractual Obligation containing covenants that in any way purport to (A) restrict any business activity (including the solicitation, hiring or engagement of any Person directly or indirectly owning, controlling the solicitation of any customer) by the Company or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more limit the freedom of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI Company or any GFI Subsidiary Affiliate thereof to engage in any line of business or (C) compete with any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI SubsidiaryPerson;
(vii) any agreement (including Contractual Obligation under which the Company is, or may become, obligated to incur any exclusivity agreement) severance pay or Compensation obligations that purports to limit or restrict in any material respect either the type would become payable by reason of business in which GFI or any GFI Subsidiary may engage this Agreement or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI SubsidiaryContemplated Transactions;
(viii) any agreement Contractual Obligation under which the Company is, or may, have any Liability to any investment bank, broker, financial advisor, finder or other similar Person (including an obligation to pay any legal, accounting, brokerage, finder’s, or similar fees or expenses) in connection with a non-solicitation this Agreement or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiarythe Contemplated Transactions;
(ix) any agreement, other than such agreements entered into in Contractual Obligation providing for the ordinary course employment or consultancy of business, under which (A) any Person on a full-time, part-time, consulting or other basis or otherwise providing Compensation or other benefits to any officer, director, employee or consultant (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (Company Plan and other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose any consultancy involving Compensation of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,00050,000 per year);
(x) any material agency, dealer, distributor, sales representative, marketing or other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Deliverysimilar Contractual Obligation;
(xi) any agreement under which GFI outstanding general or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights)special powers of attorney executed by or on behalf of the Company;
(xii) any agreement Contractual Obligation, other than Real Property Leases, relating to the lease or license of any material Asset, including Company Products and material Intellectual Property Rights (and including all material customer license and maintenance agreements) that involves expenditures or receipts is not included on Section 3.11(d) of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per yearCompany Disclosure Schedule;
(xiii) any material agreement with Contractual Obligation under which the Company has advanced or loaned an amount to any Governmental Entity;of its Affiliates or employees other than in the Ordinary Course of Business; and
(xiv) any material agreement other Contractual Obligation between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real PropertyCompany, on the one hand, and any Seller (or Affiliate or Family Member thereof), on the other agreement hand, that relates will continue in any way effect after the Closing. The Company has delivered to the occupancy or use Buyer accurate and complete copies of any each written Contractual Obligation listed on Section 3.16 of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effect.
(b) The agreementsCompany Disclosure Schedule, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with as amended or without notice or lapse of time or both), otherwise modified and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or the GFI Subsidiaries, as applicable, and, effect. The Company has delivered to the Knowledge Buyer written summary setting forth all of GFI, with respect to the other parties thereto, material terms and have been delivered or made available to Parentconditions of each oral Contractual Obligation listed on Section 3.16 of the Company Disclosure Schedule.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Mercury Computer Systems Inc)
Contracts. (a) Except for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) As of the GFI Disclosure Letterdate hereof, neither GFI the Company nor any GFI Subsidiary of its Subsidiaries is a party to or is bound by, nor are by any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits underContract:
(ia) any agreement relating that would be required to Indebtednessbe filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(iib) any contracts under which GFI Contract that imposes any material restriction on the right or ability of the Company or any of its Subsidiaries to compete with any other Person or in any geographic area, or any other provision that by its express terms materially restricts the GFI conduct of any line of business or activities in connection with any product line by the Company or any of its Affiliates (or that following the Closing will materially restrict the ability of Parent or any of its Affiliates to engage in any line of business or activities in connection with any product line or in any geographic area or compete with any Person);
(c) any Contract that (i) obligates the Company or any of its Subsidiaries (or following the Closing, Parent or any of its Affiliates) to conduct its or their respective businesses with any other Person on a preferential or exclusive basis, (ii) contains “most favored nation” or similar covenants or preferential treatment in favor of any other Person or (iii) is a requirements or “take or pay” Contract or otherwise requires the Company to purchase a minimum amount of a particular product from a supplier, in each case, in a manner that is material to the Company and its Subsidiaries, taken as a whole;
(d) any Contract requiring or otherwise relating to any future capital expenditures by the Company or any of its Subsidiaries that are $1,000,000 in excess of the Company’s capital expenditure budget that has advanced been made available to Parent;
(e) any Contract with or loaned to a labor union or guild (including any Person collective bargaining agreement);
(f) any amounts Contract relating to Indebtedness for borrowed money of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $500,0001,000,000 that is not disclosed in the Company SEC Documents;
(iiig) any Contract that grants any option, right of first refusal, right of first offer or similar right or any other Lien with respect to any material joint ventureassets, partnership, limited liability company, shareholder, rights or other similar agreements properties of the Company or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint ventureits Subsidiaries;
(ivh) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(v) any agreement or series of related agreements, including any option agreement, relating to Contract that provides for the acquisition or disposition of any asset (other than acquisitions or dispositions of inventory in the ordinary course of business) or business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess and with any outstanding obligations that are material to the Company or any of $2,000,000;its Subsidiaries; and
(vii) any material joint venture, partnership or limited liability company agreement with (A) any Person directly or indirectly owningother similar Contract relating to the formation, controlling creation, operation, management, control, dissolution, wind-up, exit from or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition buyout of any material assets joint venture, partnership or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreementlimited liability company, other than any such agreements entered into in Contract solely between the ordinary course of business, under which Company and its wholly owned Subsidiaries or solely among the Company’s wholly owned Subsidiaries; and
(Aj) any Person Contract to which a (other than GFI or a GFI Subsidiaryi) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary Top Supplier or (Bii) GFI or Top Customer is a party. Each of the Contracts of the types described in this Section 3.15 is referred to as a “Material Contract”. Except for this Agreement and any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be Contract filed as an exhibit to any GFI the Company SEC Document Documents in unredacted form, the Company has made available to Parent or its Representatives a true, correct and complete copy of each Material Contract (as described in Items 601(b)(4including all amendments, modifications thereof) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any Section 3.15 of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effect.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Company Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI sets forth a correct and complete list of all Material Contracts.” Except as would not have a material impact . Each Material Contract is valid and binding on the respective businesses Company and each of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is its Subsidiaries party thereto and, to the Knowledge knowledge of GFIthe Company, no any other party isthereto, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a except for such failures to be valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may to be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, there is no default under any Material Contract by the Company or any of its Subsidiaries party thereto or, to the knowledge of the Company, any other party thereto, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by the Company or any of its Subsidiaries party thereto or, to the knowledge of the Company, any other party thereto. There are no material disputes pending or, to the knowledge of the Company, threatened with respect to GFI any Material Contract and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to a Material Contract to terminate for default, convenience or not renew any Material Contract, nor to the GFI Subsidiariesknowledge of the Company, is any such party threatening to do so. Except as applicablewould not, andindividually or in the aggregate, reasonably be expected to have a Material Adverse Effect, to the Knowledge knowledge of GFIthe Company, each of the representations and warranties set forth in Section 3.9 and Section 3.10 is true and correct with respect to Seven Hills. Except as otherwise set forth in the other parties theretoorganizational documents of Seven Hills, and have been delivered neither the Company nor any of its Subsidiaries has entered into any agreement granting any Person the right to make a debt or made available to Parentequity investment in Seven Hills or acquire the Seven Hills Interest.
Appears in 2 contracts
Sources: Merger Agreement (Continental Building Products, Inc.), Merger Agreement (Continental Building Products, Inc.)
Contracts. (a) Except for this Agreement, Neither the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) of the GFI Disclosure Letter, neither GFI Company nor any GFI Subsidiary of its Subsidiaries is a party to or is bound by, nor are by any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits underthe following Contracts that remain in effect as of the date hereof:
(i) any agreement relating employment or consulting Contract with any director, officer, employee, other than (A) “at-will” offer letters delivered in the ordinary course of business, and (B) those that are terminable by the Company or any of its Subsidiaries on no more than thirty (30) days’ notice without liability or financial obligation to Indebtednessthe Company;
(ii) any contracts under which GFI Contract (including any stock option Contract) or plan (including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan) any of the GFI Subsidiaries has advanced benefits of which will be increased, or loaned the vesting of benefits of which will be accelerated, by the occurrence of any Person of the transactions contemplated by this Agreement (including the Offer and the Merger) or the value of any amounts in excess of $500,000the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(iii) any material joint ventureContract that provides for indemnification of any director, partnershipofficer, limited liability company, shareholderemployee or agent, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(v) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreementguaranty, other than such agreements Contracts entered into in the ordinary course of business, under which ;
(Aiv) any Contract containing any covenant limiting in any respect the right of the Company or any of its Subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights;
(v) any Contract relating to the disposition or acquisition by the Company or any of its Subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which the Company or any of its Subsidiaries has any material ownership interest in any Person (other than GFI the Company’s Subsidiaries;
(vi) any dealer, distributor or a GFI Subsidiary) has directly sales representative (in-bound or indirectly guaranteed out-bound), marketing or provided an indemnity in respect of any liabilitiesdevelopment Contract, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI Contract pursuant to which the Company or any GFI Subsidiary of its Subsidiaries has directly continuing obligations to develop any Intellectual Property that will not be owned, in whole or indirectly guaranteed in part, by the Company or provided an indemnity in respect any of liabilitiesits Subsidiaries;
(vii) any Contract to license any third party to manufacture or reproduce any Company product, obligations service or commitments of technology (including, without limitation, any other Person (other than GFI ASIC or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practiceADG agreements), unless such guarantor or indemnity obligation any Contract to sell or distribute any Company products, service or technology except Contracts with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent;
(viii) any Contracts to provide source code to any third party for any product or technology that is less than $1,000,000material to the Company and its Subsidiaries taken as a whole;
(ix) any Contracts relating to the borrowing of money or the extension of credit;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K settlement Contract under which the Securities Act) that Company has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Deliveryongoing obligations;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights Contract with a customer of the Company involving payments in excess of One Hundred Thousand Dollars (including demand and piggy-back registration rights);$100,000) in the aggregate; or
(xii) any agreement that involves expenditures or receipts of GFI Contract to which Phoenix Technologies or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between its Subsidiaries or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes affiliates is a Material Adverse Effectparty.
(b) The agreementsNeither the Company nor any of its Subsidiaries, commitmentsnor to the knowledge of the Company, arrangements any other party to a Company Contract, is in breach, violation or default under, and plansneither the Company nor any of its Subsidiaries has received written notice that it has breached, whether written violated or oraldefaulted under, listed any of the material terms or conditions of any of the Contracts to which the Company or any of its Subsidiaries is a party or by which it is bound that are required to be listed disclosed in Section 2.19(athe Company Disclosure Schedule (any such Contract, a “Company Contract” and together, the “Company Contracts”) in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate). The Company has provided to Parent a complete and accurate copy of any Contracts the Company has with the Company’s top fifty (50) customers, based upon the cumulative revenues of the GFI Disclosure Letter together with Company and its Subsidiaries for the GFI License Agreements are referred to herein as the “GFI Contractstrailing thirty (30) month period ended March 31, 2002.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or the GFI Subsidiaries, as applicable, and, to the Knowledge of GFI, with respect to the other parties thereto, and have been delivered or made available to Parent.
Appears in 2 contracts
Sources: Merger Agreement (Synopsys Inc), Merger Agreement (Insilicon Corp)
Contracts. (a) Except for For purposes of this Agreement, the CME Merger Agreement and term "Company Material Contract" means any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) of the GFI Disclosure Letter, neither GFI nor following Contracts to which the Company or any GFI Subsidiary of its Subsidiaries is a party to or bound by, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:
otherwise bound: (i) any agreement relating Contract pursuant to Indebtedness;
which the Company and its Subsidiaries reasonably expect to spend or may receive, in the aggregate, more than $1,000,000 during the fiscal year ended December 31, 2006, (ii) any contracts under which GFI Contract containing any covenant (A) limiting the right of the Company or any of the GFI its Subsidiaries has advanced to engage in any line of business, to make use of any material Intellectual Property or loaned to compete with any Person in any amounts in excess line of $500,000;
business, (B) granting to any customer or partner of the Company exclusive rights to use services, software or application of the Company, or (C) otherwise having a material adverse effect on the right of the Company or its Subsidiaries to sell or distribute any products or services or to purchase or otherwise obtain any software, (iii) any "material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(v) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements entered into in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document contract" (as described such term is defined in Items 601(b)(4) and Item 601(b)(10) of Regulation S-K under K) with respect to the Securities ActCompany and its Subsidiaries, (iv) any employment, consulting or indemnification Contract (other than a standard stock option, assignment of inventions or confidentiality agreement) with any executive officer or other employee of the Company, a Subsidiary of the Company or any member of the Company Board earning an annual salary in excess of $150,000, other than those that has are terminable by the Company or any of its Subsidiaries on no more than 30 days' notice without material liability or financial obligation to the Company or any of its Subsidiaries, (v) any Contract relating to indebtedness or other commitment relating to the incurrence of indebtedness of the Company or an of its Subsidiaries, with respect to an amount in excess of $250,000, (vi) any Contract relating to the disposition or acquisition by the Company or any of its Subsidiaries, after the date of this Agreement, of a material amount of assets not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior Ordinary Course of Business or pursuant to which the Company or any of its Subsidiaries has any material ownership interests in any other Person other than the Company's Subsidiaries, (vii) any Contract relating to capital expenditures by the Company or any Subsidiary and involving future payments which, together with future payments under all other Contracts or commitments relating to the Date same capital project, exceed $1,000,000, (viii) any Contract providing for the administration by any Person of Delivery;
any part of the leases, loans, installment financing contracts, installment sales contracts, conditional sales agreements or financial instruments of a similar type of the Company or any of its Subsidiaries, (ix) any Contract limiting the right of the Company or any Subsidiary to pay dividends or distributions to its shareholders, (x) any Contract in which the Company or any Subsidiary participates as a general partner or joint venture, (xi) any agreement under which GFI Contract between or among the Company, on the one hand, and any GFI Subsidiaries has granted any Person registration rights of its Affiliates (including demand and piggy-back registration rightsother than the Company or a Subsidiary);
, on the other hand, (xii) any agreement that involves expenditures or receipts of GFI Contract providing for indemnification or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any guaranty that is material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effect.
(b) The agreements, commitments, arrangements Company and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI its Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is taken as a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract whole (in each case, with or without notice or lapse under which the Company has continuing obligations as of time or boththe date hereof), and (iv) each GFI other than any guaranty by the Company of any of its Subsidiaries' obligations or any Contract (including all modifications and amendments thereto and waivers thereunder) is providing for indemnification entered into in full force and effect connection with respect to GFI the distribution, sale or license of services or hardware or software products in the GFI SubsidiariesOrdinary Course of Business, or otherwise in accordance with the Company's standard forms of software license agreement as applicable, and, to the Knowledge of GFI, with respect to the other parties thereto, and have been delivered provided or made available to ParentBuyer, (xiii) any Contract to provide source code to any third party for any products that are material to the Company, including any Contract to put such source code in escrow with a third party on behalf of a licensee or contracting party, other than any customer Contracts entered into in the Ordinary Course of Business consistent with past practice and substantially on the Company's standard terms and conditions providing for placement of such source code into escrow solely for the purpose of permitting the customer or its agents to use such source code in support of internal use of the Company's products, and (xiv) any settlement Contract other than (A) releases immaterial in nature or amount entered into with former employees or independent contractors of the Company in the Ordinary Course of Business or (B) settlement Contracts only involving the payment of cash (which has been paid) in amounts that do not exceed $500,000 in any individual case. All Company Material Contracts are described in Section 2.11(a)(i) and (ii) are listed in Section 2.11(a)(i) and (ii), respectively, of the Company Disclosure Schedule.
Appears in 2 contracts
Sources: Combination Agreement (WiderThan Co., Ltd.), Combination Agreement (Realnetworks Inc)
Contracts. (a) Except for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) Part 3.10 of the GFI Disclosure LetterSchedule sets forth a complete and correct list of each of the following contracts, neither GFI nor any GFI Subsidiary is a party agreements, leases, licenses and obligations related to or bound by, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:
(i) any agreement relating the Business to Indebtedness;
(ii) any contracts under which GFI the Company or any of the GFI Subsidiaries Shareholders is a party or bound (the “Contracts”). The Contracts are valid, binding and enforceable in accordance with their respective terms, and are in full force and effect. There are no existing material defaults thereunder and no event of default has advanced occurred which (whether with or loaned any Person any amounts in excess without notice, lapse of $500,000;time or both) would constitute a material default thereunder:
(iiia) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
Contracts concerning confidentiality (iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(v) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements typical confidentiality provisions contained in Contracts entered into in the ordinary course of business) or that purport to limit, under which (A) any Person (other than GFI curtail or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect restrict the ability of any liabilities, obligations or commitments of GFI the Company or any GFI Subsidiary of its future subsidiaries or (B) GFI Affiliates to conduct business in any geographic area or line of business or restrict the Persons with whom the Company or any GFI Subsidiary has directly of its future subsidiaries or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000Affiliates may do business;
(xb) Contracts with any employee, consultant or other independent contractor (including contracts with or “leases” from any truck owner-operator), and any offer letters for employment with the Company outstanding, including but not limited to any Contracts providing for any commission based compensation, profit sharing, severance payments or benefits, relocation payments or benefits, bonuses, change in control payments or benefits, and the details of any such compensation agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Deliveryarrangement;
(xic) Contracts with any agreement under which GFI labor union or any GFI Subsidiaries has granted any Person registration rights other representative of employees (including demand and piggy-back registration rightsany collective bargaining agreement);
(xiid) Contracts with any agreement that involves expenditures employee leasing or receipts temporary staffing agencies for the engagement of GFI any leased employees or any GFI Subsidiary in excess of $3,000,000 in the aggregate per yearindependent contractors;
(xiiie) any material agreement Contracts with any Governmental Entity;
(xiv) present or former officer, director or stockholder of the Company, or any material Affiliate of such officer, director or stockholder, including any agreement between or among Affiliates of GFI;
(xv) any Lease providing for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effect.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation employment of, furnishing of services by, rental of assets from or in default underto, or otherwise requiring payments to, any GFI Contractsuch officer, (ii) each GFI Contract is a valid and binding agreement of GFI director, stockholder or a GFI SubsidiaryAffiliate, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with other than (A) advances or without notice or lapse of time or both)reimbursements for travel and entertainment expenses, (B) employee confidentiality and non-disclosure agreements on the Company’s standard form, and (ivC) each GFI Contract employee benefits generally available to employees.
(including all modifications f) Contracts under which the Company has advanced or loaned any amount to any of its employees or Affiliates of the Company and amendments thereto and waivers thereunder) is which has not been repaid in full force and effect with respect to GFI or the GFI Subsidiaries, as applicable, and, prior to the Knowledge date of GFI, this Purchase Agreement;
(g) Contracts granting any power of attorney with respect to the affairs of the Company or otherwise conferring agency or other parties theretopower or authority to bind the Company;
(h) partnership or joint venture agreements;
(i) Contracts for the acquisition, and have been delivered sale or made available to Parent.lease of material properties or material assets (by merger, purchase or sale of stock or assets or otherwise);
(j) Contracts with any Governmental Body;
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Heckmann CORP)
Contracts. (a) Except for For purposes of this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) each of the GFI Disclosure Letter, neither GFI nor any GFI Subsidiary is following shall be deemed to constitute a party to or bound by, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under“Material Contract”:
(i) any agreement relating Company Contract that is required by the rules and regulations of the SEC to Indebtednessbe filed as an exhibit to the Company SEC Documents;
(ii) any contracts under employment, management, severance, retention, transaction bonus, change in control, consulting, relocation, repatriation or expatriation Contract that is not terminable at will by the Company or one of its Subsidiaries, pursuant to which GFI the Company or any one of its Subsidiaries has continuing obligations of $200,000 or more per calendar year as of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess date of $500,000this Agreement (other than those pursuant to which severance is required by Law);
(iii) any material joint ventureCompany Contract in connection with which or pursuant to which the Company and the Company Subsidiaries are committed to spend, partnershipin the aggregate, limited liability company, shareholder, or other similar agreements or arrangements relating to more than $1,000,000 during the formation, creation, operation, management or control of any partnership, strategic alliance or joint venturecurrent fiscal year;
(iv) any material agreement relating to Company Contract that generated more than $1,000,000 in revenues for the Company or any strategic allianceCompany Subsidiary in the fiscal year ended December 31, joint development, joint marketing, partnership or similar arrangement2014;
(v) any agreement or series of related agreements, including any option agreement, Company Contract relating to the acquisition acquisition, transfer, development or disposition sharing of any business material Intellectual Property rights (except for any Company Contract pursuant to which (A) any Intellectual Property rights are licensed to the Company or real property any Company Subsidiary under any third-party software license generally available to the public; or (whether B) any Intellectual Property rights are licensed by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000the Company to any Person on a non-exclusive basis);
(vi) any material agreement with Contract (A) relating to a transaction involving the disposition or acquisition of (1) assets whose value, in each case, is in excess of $2,500,000 or (2) any Person directly tangible assets constituting a material business or indirectly owning, controlling or holding with power to vote, 5% or more of business line by the outstanding voting securities of GFI Company or any GFI SubsidiaryCompany Subsidiary after the date of this Agreement, in each case other than in the ordinary course of business; or (B) any Person 5% or more of pursuant to which the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI Company or any GFI Company Subsidiary will acquire any material ownership interest in any other Person or (C) other business enterprise other than any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Company Subsidiary;
(vii) any agreement mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, in each case in excess of $5,000,000 other than (including A) accounts receivables and payables in the ordinary course of business; (B) loans to any exclusivity agreementCompany Subsidiary in the ordinary course of business; and (C) that purports extensions of credit to limit or restrict customers in any material respect either the type ordinary course of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiarybusiness;
(viii) any agreement Contract providing for the payment, increase or vesting of any benefits or compensation in connection with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiarythe Merger;
(ix) any agreement, other than such agreements entered into in Contract that is a settlement agreement that imposes material obligations on the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI Company or any GFI Company Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect after the date of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000this Agreement;
(x) any other agreement Contract that involves a material joint venture, limited liability company or amendment thereto that would be required to be filed as an exhibit to partnership with any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Deliverythird Person;
(xi) any agreement under which GFI Contract containing any covenant or other provision (A) limiting the right of the Company or any GFI Subsidiaries has granted Company Subsidiary to engage in any material line of business or to compete with any Person registration rights in any line of business that is material to the Company; (including demand B) prohibiting the Company or any Company Subsidiary from engaging in any business with any Person or levying a fine, charge or other payment for doing so; or (C) containing “most favored nation,” “exclusivity” or similar provisions, in each case other than any such Contracts that (1) may be cancelled without material liability to the Company or its Subsidiaries upon notice of ninety (90) days or less; or (2) are not material to the Company and piggy-back registration rights);its Subsidiaries, taken as a whole; and
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease Company Contract which provides for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use indemnification of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse EffectCompany Employee.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(aPart 3.10(a) of the GFI Disclosure Letter together with Schedule lists all Material Contracts as of the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Agreement Date. Each Material Contract is a valid and binding agreement of GFI or a GFI Subsidiaryin full force and effect, as the case may be, and is enforceable in accordance with its terms, except as may be limited by applicable subject to (i) Laws of general application relating to bankruptcy, insolvencyinsolvency and the relief of debtors; and (ii) rules of Law governing specific performance, reorganizationinjunctive relief and other equitable remedies.
(c) To the Company’s Knowledge, moratoriumas of the Agreement Date, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principlesneither the Company nor any Company Subsidiary party to, (iii) to the Knowledge of GFInor any other party to, no event has occurred which would result any Material Contract, is in a material breach or violation of, or a material default under, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or the GFI Subsidiaries, as applicable, and, to the Knowledge of GFI, with respect to the other parties thereto, and have been delivered or made available to ParentMaterial Contract.
Appears in 2 contracts
Sources: Merger Agreement (Procera Networks, Inc.), Merger Agreement (Procera Networks, Inc.)
Contracts. (a) Except for this Agreement, Contracts between the CME Merger Agreement Company or its subsidiaries on the one hand and any agreements contemplated by CME Merger Agreement Parent or a subsidiary of Parent on the transactions contemplated thereby and any contract set forth in Section 2.19(a) of the GFI Disclosure Letterother hand, neither GFI the Company nor any GFI Subsidiary of its subsidiaries is a party to or is bound by, nor are by any of their respective assetsthe following Contracts as of the date of this Agreement, businesses or operations party toexcept to the extent those Contracts are listed in Section 2.20(a) of the Company Disclosure Letter and are identified thereon using the numbering below, or bound or affected by, or receive benefits underin each case listing (i) the person(s) with whom such Contract is made and (ii) the date thereof:
(i) any agreement relating employment or consulting Contract with any officer or director, or any Employee (excluding offer letters for “at-will” Employees) or any other type of Contract (whether or not such Contract is an Employment Agreement, as defined in Section 2.13(a)(vi)) with any Employee that is not terminable within thirty (30) days by the Company without Liability to Indebtednessthe Company or Parent, including any Contract requiring it to make or accelerate a payment to any Employee on account of the Merger, any Transaction or any Contract that is entered into in connection with this Agreement;
(ii) any contracts under which GFI Contract or plan, including any stock option plan, stock appreciation right plan or stock purchase plan (A) relating to the sale, issuance, grant, exercise, award, purchase, repurchase or redemption of any shares of Company Common Stock or any other securities of the Company or any of its subsidiaries or any options, warrants, convertible notes or other rights to purchase or otherwise acquire any such shares of stock, other securities or options, warrants or other rights therefor, except for the GFI Subsidiaries has advanced Company Stock Plans, or loaned (B) any Person of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any amounts in excess of $500,000the Transactions or the value of any of the benefits of which will be calculated on the basis of any of the Transactions;
(iii) any material joint ventureContract requiring the Company to engage in ongoing research or development, partnershipwhich obligations extend beyond January 1, limited liability company, shareholder, 2007 and are not terminable by the Company (with or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venturewithout penalty) on less than ninety (90) days prior notice;
(iv) any material agreement relating Contract (whether non-compete or otherwise) containing provisions which have or would reasonably be expected to have the effect of prohibiting or impairing any strategic alliancebusiness practice of the Company or any of its subsidiaries (including engaging in research and development or the development or commercialization of any Company Product), joint developmentany acquisition of property (tangible or intangible) by the Company or any of its subsidiaries, joint marketingany other conduct of business by the Company or any of its subsidiaries, partnership or similar arrangementotherwise limiting the freedom of the Company or any of its subsidiaries to engage in any line of business in any geographical area or to compete with any person. Without limiting the generality of the foregoing, neither the Company nor any of its subsidiaries has entered into any Contract under which the Company or any of its subsidiaries is prohibited or impaired from engaging in any areas of research or development or from the licensing, manufacturing, selling or distributing any Company Intellectual Property or exploiting any Technology of the Company;
(v) any agreement Contract under which the Company has granted or series is obligated to grant any person any “opt-in” rights, exclusive rights, rights of related agreements, including any option agreement, relating to the acquisition refusal or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000similar rights;
(vi) any Contract under which the Company is obliged to enter into any further agreement or license, under which the Company is obligated to accept or use manufacturing (including cell culture, bulk manufacturing or fill and finish) capacity or to pay for manufacturing capacity not used or accepted, or under which the Company has any material agreement with (A) any Person directly “take or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiarypay” commitment;
(vii) any agreement (including any exclusivity agreement) that purports Contract relating to limit or restrict in any material respect either the type of business in which GFI disposition by the Company or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition its subsidiaries of any a material amount of assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements entered into not in the ordinary course of business, under or pursuant to which (A) any Person the Company or its subsidiaries has acquired a business or entity, or material assets of a person (other than GFI purchases in the ordinary course of business that are customarily effected on a purchase order basis), whether by way of merger, consolidation, purchase of stock, purchase of assets, exclusive license or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilitiesotherwise, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI Contract pursuant to which the Company or any GFI Subsidiary of its subsidiaries has directly any material ownership interest in any person other than the Company’s subsidiaries;
(viii) any Contract currently in force under which the Company or indirectly guaranteed any of its subsidiaries has continuing obligations to provide to a third person information about any Company Research Program or provided an indemnity in respect of liabilities, obligations or commitments of any other Person scientific or clinical data produced by the Company, including research, characterization, manufacturing, clinical, pre-clinical or other information and including information regarding the Company’s planned research and development activities;
(ix) any joint venture Contract, collaboration Contract or any other than GFI Contract that involves a sharing of revenues, profits, cash flows, expenses (including development expenses) or a GFI Subsidiary) (in each case losses with other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000persons;
(x) any other agreement Contract requiring the Company or amendment thereto that would be required any of its subsidiaries to be filed as an exhibit undertake a clinical trial (or to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10have a third person undertake a clinical trial on the Company’s or its subsidiaries’ behalf) of Regulation S-K under an existing Company Product or the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date subject of Deliverya Company Research Program;
(xi) any agreement under which GFI Contract that authorizes any third person to sell, offer for sale, market or otherwise distribute any GFI Subsidiaries has granted Company Products or results of any Person registration rights (including demand and piggy-back registration rights)Company Research Programs;
(xii) any agreement that involves expenditures mortgages, indentures, guarantees, promissory notes, loans or receipts credit agreements, security Contracts or other Contracts or instruments relating to the borrowing of GFI money or extension of credit, or any GFI Subsidiary currency exchange, commodities or other hedging arrangement or any leasing transaction of the type required to be capitalized in excess of $3,000,000 in the aggregate per yearaccordance with GAAP;
(xiii) any material agreement with any Governmental Entitysettlement or litigation “standstill” Contract;
(xiv) any material agreement between Contract of guarantee, support, assumption or among Affiliates endorsement of, or any similar commitment with respect to, the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of GFIany other person;
(xv) any Lease Contract (including open purchase orders) under which the Company has a commitment to purchase goods, capital equipment, services or other items in excess of $50,000 for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy Contract or use series of any of the GFI Leased Real Property; orContracts;
(xvi) any agreement Contract (i) pursuant to which any third person is required to make payments to the termination Company in excess of $20,000 per annum, (ii) pursuant to which the Company or breach any of its subsidiaries is obligated to pay any royalty or similar payments, including but not limited to profit sharing or similar payments, or (iii) pursuant to which the Company or any of its subsidiaries is obligated to pay any milestone payment or similar payment, including any payment of a pre-determined amount in excess of $100,000, which payment is contingent on the failure to obtain consent in respect occurrence of constitutes a Material Adverse Effect.future event, but excluding any fee-for-service Contract;
(bxvii) The agreementsany Contract pursuant to which the Company or any of its subsidiaries is a lessor or lessee of any equipment or other fixed assets, commitmentsincluding machinery, arrangements equipment, motor vehicles, office furniture, fixtures or other personal property involving payments in excess of $20,000 per annum or involving any manufacturing equipment with a value in excess of $10,000;
(xviii) any Contract with any person with whom the Company or any of its subsidiaries does not deal at arm’s length;
(xix) any Contract with any investment banker, broker, advisor or similar party, or any accountant, legal counsel or other person retained by the Company, in connection with this Agreement and plansthe Transactions;
(xx) any Contract with any Governmental Entity (a “Government Contract”) or any material federal, whether written state, county, local or oralforeign governmental consent, license, permit, grant, or other authorization of a Governmental Entity (excluding Company Permits) that is required for the operation in all material respects of the Company’s or any of its subsidiaries’ businesses;
(xxi) any Contract entitling a third person (other than an Employee) to a commission or “finder’s fee” payable by the Company or any of its subsidiaries; or
(xxii) any Contract not otherwise disclosed in Section 2.20 of the Company Disclosure Letter (i) under which the consequences of a default could reasonably be expected to be material to the Company, (ii) that is of the nature required to be filed by Company as an exhibit to an Annual Report on Form 10-K under the Exchange Act; (iii) involving in excess of $100,000 being paid by or to the Company over the term thereof, or (iv) that is otherwise material to the Company or any of its subsidiaries or their respective businesses, operations, properties, assets, financial condition, results of operations or cash flows; any such Contract listed or required to be listed in Section 2.19(a2.19(b)(iii) or Section 2.20(a) of the GFI Company Disclosure Letter together with being a “Company Contract”.
(b) Neither the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI Company nor any GFI Subsidiary is andof its subsidiaries, nor, to the Knowledge of GFICompany’s knowledge, no any other person that is a party isto a Company Contract, is in breach breach, violation or violation of, or in default under, and neither the Company nor any GFI Contractof its subsidiaries has received notice that it has breached, (ii) each GFI Contract is a valid and binding agreement of GFI violated or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default defaulted under, any GFI Contract (in each case, with of the material terms or without notice conditions of any Company Contract. The Company or lapse the applicable Company subsidiary is entitled to all benefits under any Company Contract. Each of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) the Company Contracts is in full force and effect with respect to GFI or the GFI Subsidiarieseffect, as applicableand has not been amended in any material respect, and, except to the Knowledge extent that such amendment is described in Section 2.20(a) of GFIthe Company Disclosure Letter. Except as noted in Section 2.20(b), with respect to the other parties thereto, and have been Company has delivered or made available to Parent or its representatives true, correct and complete copies of each of the Company Contracts required to be listed in Section 2.20(a) of the Company Disclosure Letter; provided that, to the extent that third party confidentiality restrictions expressly prohibit disclosure of such Company Contract to Parent, Section 2.20(b) of the Company Disclosure Letter sets forth a description of the subject matter of each such Company Contract and a general indication of the nature of the rights and obligations granted thereunder. The Company is not a party to any Government Contract (other than Company Permits).
Appears in 2 contracts
Sources: Merger Agreement (Tanox Inc), Merger Agreement (Genentech Inc)
Contracts. (a) Except for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a3.10(a) of the GFI Seller Disclosure Letter, neither GFI nor any GFI Subsidiary Schedule sets forth an accurate and complete list as of the date hereof of each Contract to which the Company is a party to or bound byparty, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits underwhich:
(i) any agreement relating to Indebtednessincludes a term extending more than one (1) year beyond the date of this Agreement;
(ii) any contracts under which GFI involves future annual expenditures or any of receipts by the GFI Subsidiaries has advanced or loaned any Person any amounts Company in excess of $500,0005,000 in the aggregate during the term thereof;
(iii) any material joint venture, partnership, limited liability company, shareholder, pursuant to which the Company sells products to customers or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venturevendors;
(iv) relates to the borrowing of money or guarantying any material agreement obligation for borrowed money or otherwise, including any Contract that is a (A) mortgage, indenture, note, installment obligation or other instrument relating to any strategic alliancethe borrowing of money, joint development(B) letter of credit, joint marketingbond or other indemnity (including letters of credit, partnership bonds or similar arrangementother indemnities as to which the Company is the beneficiary, but excluding endorsements of instruments for collection) or (C) currency or interest rate swap, collar or hedge agreements;
(v) affects the ownership of, leasing of, title to, use of, or any agreement or series of related agreements, including other possessory interest in any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000Company Properties;
(vi) pursuant to which the Company uses Intellectual Property owned by a third party, except for any material agreement license implied by the sale of a product and perpetual, paid-up licenses for commonly available software programs with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more a value of less than $1,000 under which the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of Company is the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiarylicensee;
(vii) involves any agreement (including any exclusivity agreement) that purports to limit labor union or restrict in any material respect either the type other employee representative of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any a group of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiaryemployees;
(viii) creates a partnership or joint venture with any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiaryother Person;
(ix) contains covenants that in any agreementway purport to restrict the business activity of the Company or limit the freedom of the Company to engage in any line of business, to compete with any Person or solicit or hire any person with respect to employment;
(x) pursuant to which the Company extends a written warranty, guaranty or other similar undertaking with respect to contractual performance;
(xi) provides for payments to Employees as a result of the transactions contemplated by this Agreement;
(xii) involves the sale of any of the assets of the Company other than such agreements entered into in the ordinary course of business, under which (A) business or for the grant to any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments preferential rights to purchase any of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per yearCompany’s assets;
(xiii) relates to the acquisition (by merger, purchase of stock or assets or otherwise) by the Company of any operating business or material agreement with assets or the capital stock of any Governmental Entityother Person;
(xiv) any material agreement between obligates the Company to provide or among Affiliates obtain products or services for a period of GFIone (1) year or more or requiring the Company to purchase or sell a stated portion of its requirements or outputs;
(xv) any Lease for under the GFI Leased Real Propertyterms thereof, and the Company has made advances or loans to any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; orPerson;
(xvi) provides for severance, retention, change in control or other similar payments;
(xvii) provides for the employment of any agreement individual on a full-time, part-time or consulting or other basis; and
(xviii) is otherwise material to the termination or breach Company. The Contracts listed in Section 3.10(a) of which or the failure Seller Disclosure Schedule are referred to obtain consent in respect of constitutes a this Agreement as the “Material Adverse EffectContracts”.
(b) The agreementsWith respect to each such Material Contract, commitments, arrangements and plans, whether written or oral, listed or required neither the Company party to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI Material Contract nor any GFI Subsidiary is and, other party to the Knowledge of GFI, no other party is, Material Contract is in breach or violation of, default under any material provisions of such Material Contract except for such breaches or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI defaults as to which requisite waivers or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to consents have been issued or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no obtained. No event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, that with or without notice or the lapse of time or both)the giving of notice or both would constitute a material breach or default on the part of the Company or any other party under any Material Contract. Upon consummation of the transactions contemplated by this Agreement, and (iveach Material Contract will, except as otherwise stated in Section 3.10(b) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is of the Seller Disclosure Schedule, continue in full force and effect without penalty or other adverse consequence triggered by the consummation of the transactions contemplated by this Agreement. Each Material Contract is enforceable as to the Company in accordance with its terms subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. From January 1, 2011 to the date hereof, (i) no party to any of the Material Contracts has exercised any termination rights with respect thereto, (ii) no party has given written notice of any significant dispute with respect to GFI any Material Contract, and (iii) no party has provided written notification to the Seller or the GFI SubsidiariesCompany that it will stop or, as applicableother than generally applicable price increases, and, materially alter the pricing or terms of any Material Contract. The Seller has delivered to the Knowledge Purchaser true, correct and complete copies of GFIall of the Material Contracts, together with respect to the other parties all amendments, modifications or supplements thereto, and have been delivered or made available to Parent.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Capsalus Corp), Stock Purchase Agreement (Genelink Inc)
Contracts. (a) Except for For purposes of this Agreement, the CME Merger Agreement and a “Company Material Contract” is any agreements contemplated by CME Merger Agreement Company Agreement, whether or the transactions contemplated thereby and any contract not set forth in Section 2.19(a) 3.13 of the GFI Company Disclosure LetterSchedule, neither GFI nor any GFI Subsidiary is a party to or bound bywhich, nor are any as of their respective assetsthe date hereof, businesses or operations party to, or bound or affected by, or receive benefits under:
(i) any agreement relating to Indebtedness;
is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC); (ii) any contracts under which GFI that involves aggregate revenues or any of the GFI Subsidiaries has advanced or loaned any Person any amounts expenditures in excess of $500,000;
1,000,000 per year; (iii) any material joint venture, partnership, limited liability company, shareholder, that involves revenues or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(v) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration expenditures in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements 500,000 per year and was not entered into in the ordinary course of business; (iv) that contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company or any Company Subsidiary, under or which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect restricts the conduct of any liabilities, obligations or commitments line of GFI business by the Company or any GFI Subsidiary or (B) GFI Company Subsidiary, or any GFI geographic area in which the Company or any Company Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilitiesmay conduct business, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
any material respect; (x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Actv) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement is a Clinical Contract that involves aggregate expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate 1,000,000 per year;
; (vi) with any vendor that provides billing and reimbursement services valued in excess of $500,000 during any year; (vii) is with any payor from which the Company, any Company Subsidiary or any Hospice has received payments in 2009 in excess of $500,000; (viii) is with any supplier to which the Company, any Company Subsidiary or any Hospice has made payments in 2009 in excess of $1,000,000; (ix) which would prohibit or materially delay the consummation of the Merger or any of the other Transactions; (x) is with any current or former Key Personnel; (xi) is with any labor union or association representing any employee of the Company or any of the Company Subsidiaries and any collective bargaining agreement (of which there are none), (xii) that is a partnership or joint-venture agreement; (xiii) relating to the borrowing of money (including any guarantee thereto) or that is a mortgage, security agreement, capital lease or similar agreements, in each case in excess of $500,000 or that creates a Lien on any material agreement with asset of the Company or any Governmental Entity;
of the Company Subsidiaries; (xiv) for the license or sublicense (whether as a licensor or a licensee) of any material agreement between Intellectual Property or among Affiliates other intangible asset (excluding commercial off-the-shelf or shrink wrap software than has not been modified or customized), that provides for payment or receipt of GFI;
$500,000 or more per year; (xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way relating to the occupancy or use sale of any of the GFI Leased Real Propertymaterial assets or properties of the Company or any of the Company Subsidiaries other than in the ordinary course of business or for the grant to any Person of any options, rights of first refusal, or preferential or similar rights to purchase any of such assets or properties; or
(xvi) relating to the acquisition by the Company or any agreement of the termination Company Subsidiaries of any operating business or breach the capital stock of any other Person; (xvii) requiring the payment to any Person of a material commission or fee, except in the ordinary course of business consistent with past practice; (xviii) that, in the case of a Company Benefit Plan, any of the benefits of which would be increased, or the failure to obtain consent in respect vesting of constitutes a the benefits of which would be accelerated, by the occurrence of any of the Transactions, or the value of any benefits which would be calculated on the basis of any of the Transactions; or (xix) that is an insurance policy providing for indemnification of any officer or director of the Company or any of the Company Subsidiaries, other than the Company Governing Documents; provided, however, that the foregoing definition of Company Material Adverse EffectContract shall not include any leases, subleases and other occupancy or use agreements concerning the real property leased by the Company or any of the Company Subsidiaries, including the Material Company Leases (collectively, the “Company Leases”).
(b) The agreementsAs of the date hereof, commitmentsthere is no Company Agreement (other than the Company Leases), arrangements any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the Transactions or the value of the benefits to any party of which will be calculated on the basis of any of the Transactions (except as disclosed pursuant to Section 3.11). As of the date hereof, each Company Material Contract is valid and plansbinding on the Company and each Company Subsidiary party thereto and, whether written or oralto the Company’s knowledge, listed or as of the date hereof, each other party thereto, as applicable, and in full force and effect, and the Company and each Company Subsidiary has performed in all respects all obligations required to be listed performed by it under each Company Material Contract, except any failure of performance that would not have or be reasonably likely to have, individually or in Section 2.19(a) the aggregate, a Company Material Adverse Effect and, to the Company’s knowledge, as of the GFI Disclosure Letter together with the GFI License Agreements are referred date hereof, each other party to herein as the “GFI Contracts.” Except each Company Material Contract has performed in all material respects all obligations required to be performed by it under such Company Material Contract, except as would not have or be reasonably likely to have, individually or in the aggregate, a material impact on Company Material Adverse Effect. As of the respective businesses date hereof, none of GFI the Company or any Company Subsidiary knows of, or has received notice of, any violation or default under (or any condition which with the passage of time or the giving of notice would cause such a violation of or default under) any Company Material Contract except for violations or defaults that would not have or be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect. The Company has delivered to Parent or provided or made available to Parent for review, prior to the execution of this Agreement, true and complete copies of all of the Company Material Contracts required to be disclosed in Section 3.13 of the Company Disclosure Schedule, which are not filed as exhibits to the Company SEC Documents, and the GFI SubsidiariesCompany Material Contracts required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true and complete copies of such contracts.
(c) As of the date hereof, none of the Company, any Company Subsidiary or any Hospice has received any written notice from any Person supplying products, materials or drugs to the Company, any Company Subsidiary or any Hospice that such Person intends to (i) neither GFI nor any GFI Subsidiary is andcease selling such products, materials or drugs to the Knowledge of GFI, no other party is, in breach or violation of, or in default underCompany, any GFI ContractCompany Subsidiary or any Hospice, (ii) each GFI Contract is a valid and binding agreement of GFI limit or a GFI Subsidiaryreduce such sales to the Company, as the case may beany Company Subsidiary or any Hospice, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) increase the prices at which such sales are made to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default underCompany, any GFI Contract (Company Subsidiary or any Hospice, except for any such cessation, limitation, reduction or increase that would not have or be reasonably likely to have, individually or in each casethe aggregate, a Company Material Adverse Effect. As of the date hereof, none of the Company, any Company Subsidiary or any Hospice has received any written notice from any third-party payor that it intends to terminate, limit or reduce its business relations with the Company, any Company Subsidiary or without notice any Hospice in the event of a sale of the Company or lapse of time otherwise except as would not have or both)be reasonably likely to have, and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is individually or in full force and effect with respect to GFI or the GFI Subsidiariesaggregate, as applicable, and, to the Knowledge of GFI, with respect to the other parties thereto, and have been delivered or made available to Parenta Company Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Gentiva Health Services Inc), Merger Agreement (Odyssey Healthcare Inc)
Contracts. (a) Except for this Agreement, the CME Merger Agreement Company Benefit Plans and Contracts filed as exhibits to any agreements contemplated by CME Merger Agreement Company Report or the transactions contemplated thereby and any contract set forth in Section 2.19(a) 3.15 of the GFI Company Disclosure Letter, as of the date hereof, neither GFI the Company nor any GFI Company Subsidiary is a party to or bound byto, nor are any and none of their respective assets, businesses properties or operations party to, or assets is bound or affected by, or receive benefits under:
(i) any agreement relating to Indebtedness;
(ii) any contracts under which GFI or by any of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess following categories of $500,000;
Contracts (iii) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(v) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than each such agreements entered into in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be Contract required to be filed as an exhibit to any GFI SEC Document Company Report or listed in Section 3.15 of the Company Disclosure Letter, a “Company Contract”):
(i) any Contract required to be filed by the Company as described in Items 601(b)(4) and a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act) Act that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Deliveryso filed;
(xiii) any agreement under Contract to which GFI the Company or any GFI Company Subsidiary is a party that (1) restricts the ability of the Company or any Company Subsidiary to engage in or compete in any business in any manner that is material to the Company and the Company Subsidiaries, taken as a whole, (2) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole, or (3) provides for “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that restricts in any material respect the business of the Company and the Company Subsidiaries, taken as a whole;
(iii) any Contract (1) constituting a credit agreement, loan agreement, indenture or similar agreement for outstanding Indebtedness of the Company or any of the Company Subsidiaries has granted in excess of $25 million, whether secured or unsecured; or (2) that requires the Company or any Company Subsidiary to make any advance, loan or commitment therefor or provide any credit support or any capital contribution to, or other investment in, any Person registration rights (including demand other than the Company) in excess of $25 million;
(iv) any (1) material Contract with respect to the creation, formation, governance or control of any material partnerships, joint ventures, joint ownership arrangements, strategic alliances or other similar arrangements with third parties or (2) any material Tax Equity Transaction Document;
(v) any Contract that (1) relates to the acquisition of assets (other than in the ordinary course of business) or capital stock or other securities (by merger, capital contribution or otherwise) of any Person after the date of this Agreement with a total consideration of more than $25 million in the aggregate, (2) relates to the disposition (other than in the ordinary course of business) after the date of this Agreement, directly or indirectly, of assets of the Company or the Company Subsidiaries with a total consideration of more than $25 million in the aggregate or any capital stock or other securities (by merger, capital contribution or otherwise) of the Company or the Company Subsidiaries or (3) contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any of the foregoing;
(vi) any Contract with a term exceeding one (1) year after the date of this Agreement for future purchases, exchanges or sales of gas, oil or electric energy in excess of $50 million in the aggregate (other than Contracts solely between the Company and piggy-back registration rightsany of its wholly owned Subsidiaries or solely among its wholly owned Subsidiaries);
(xiivii) any agreement Contract that involves expenditures otherwise limits or receipts restricts the payment of GFI dividends or distributions in respect of the capital stock or equity interests of the Company or any GFI Company Subsidiary;
(viii) any Contract entered into since January 1, 2022 that relates to the settlement (or proposed settlement) of any pending or threatened proceeding (other than Regulatory Proceedings), other than any settlement that would reasonably be expected to result in aggregate payments of less than $25 million in cash (net of any amount covered by insurance or indemnification that is reasonably expected to be received by the Company or any Company Subsidiary); or
(ix) any Contract entered into since January 1, 2022 that relates to the sale, transfer or other disposition of a business or assets by the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any continuing indemnification, guarantee, “earnout” or other contingent, deferred or fixed payment obligations that would reasonably be expected to result in aggregate payments in excess of $3,000,000 in 25 million after the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effectdate hereof.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a material impact on the respective businesses of GFI and the GFI SubsidiariesCompany Material Adverse Effect, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Company Contract is a valid valid, binding and binding agreement legally enforceable obligation of GFI the Company or a GFI Subsidiaryone of the Company Subsidiaries, as the case may be, enforceable in accordance with its termsand, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFIthe Company, no event has occurred which would result of the other parties thereto, subject in a breach all respects to the Bankruptcy and Equity Exceptions, (ii) each such Company Contract is in full force and effect and (iii) none of the Company or violation of, or a default under, any GFI Contract Company Subsidiary is (in each case, with or without notice or lapse of time time, or both), and (iv) each GFI in breach or default under any such Company Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or the GFI Subsidiaries, as applicable, and, to the Knowledge of GFIthe Company, no other party to any such Company Contract is (with respect or without notice or lapse of time, or both) in breach or default thereunder. Neither the Company nor any Company Subsidiary has received written notice of (1) any violation or default under any Company Contract or (2) any termination or threatened termination of any Company Contract, except for violations, defaults or terminations that have not had and would not reasonably be expected to have, individually or in the other parties theretoaggregate, and have been delivered or a Company Material Adverse Effect. The Company has made available to Parent, or have otherwise filed with the SEC, true and complete copies of each Company Contract in all material respects (including, for the avoidance of doubt, all material amendments, modifications, extensions or renewals with respect thereto).
Appears in 2 contracts
Sources: Merger Agreement (Allete Inc), Merger Agreement (Allete Inc)
Contracts. (a) Except for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(aSchedule 6.11(a) of the GFI Disclosure Letter, neither GFI nor Schedules contains a list of the following Contracts to which any GFI Subsidiary of the Company Entities is a party to or bound by, nor are by which any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits underthe Company Entities is bound:
(i) each Contract with a Significant Customer (as defined herein below), Significant Supplier (as defined herein below) and each other Contract that involves performance of services or delivery of goods or materials by or to any agreement relating to Indebtednessof the Company Entities of an amount or value in excess of $750,000;
(ii) any contracts under which GFI or any of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess of $500,000;
(iii) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(v) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) each Contract that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements was not entered into in the ordinary course Ordinary Course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) Business and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary of the Company Entities in excess of $3,000,000 100,000;
(iii) each Contract affecting the ownership of, leasing of, title to, use of or any leasehold or other interest in any real or personal property (excepting personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $100,000 and with a term of less than one (1) year);
(iv) each Contract with any labor union or other employee representative of a group of employees relating to wages, hours and other conditions of employment;
(v) each partnership, joint venture or other Contract involving a sharing of profits, losses, costs or liabilities by any of the Company Entities with any other Person;
(vi) each Contract containing covenants that in any way purport to restrict any of the Company Entity’s (A) business activity, (B) freedom to engage in any line of business or to compete with any Person, including any Contracts requiring such Company Entity to maintain an exclusive relationship or requiring such Company Entity to not to compete or to not to solicit in any manner, (C) ability to increase prices to a customer of the Business, or (D) operation of the Business;
(vii) each Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods in the aggregate per yearOrdinary Course of Business;
(viii) each power of attorney (or similar grant of authority) of any of the Company Entities that is currently effective and outstanding;
(ix) each Contract that contains or provides for an express undertaking by any of the Company Entities be responsible for consequential damages or indemnification obligations;
(x) each Contract for capital expenditures in excess of $100,000 for any item or $250,000 in the aggregate;
(xi) each executive employment Contract that provides for employment of senior executives or management personnel by any of the Company Entities on a full-time, part-time or other basis;
(xii) each Contract for any independent contractor or consultant providing services to any of the Company Entities;
(xiii) each written warranty, guaranty or other similar undertaking with respect to contractual performance executed by any material agreement with any Governmental Entityof the Company Entities other than in the Ordinary Course of Business;
(xiv) any material agreement between Contract relating to the acquisition or among Affiliates disposition, directly or indirectly, of GFIany business, Real Property or other assets, or the Equity Interests of any other Person;
(xv) any Lease for Contract relating to Indebtedness, the GFI Leased Real Propertyborrowing of money, or the guaranty of another Person’s borrowing of money or other obligation, including, without limitation, all notes, mortgages, indentures and other obligations, guarantees of performance, letters of credit, advances, and agreements and instruments for or relating to any other agreement that relates in any way to the occupancy lending or use of any of the GFI Leased Real Property; orborrowing;
(xvi) any agreement Contract under which the execution and delivery of this Agreement or any Ancillary Document may cause a default, give rise to any right of termination, cancellation or acceleration, or require any Consent;
(xvii) any Contract involving the settlement, release, compromise or waiver of any material rights, claims, obligations, duties or liabilities;
(xviii) any management service, consulting, financial advisory or any other similar type Contract and all Contracts with investment or commercial banks;
(xix) any Contract with any Related Parties;
(xx) any Contract involving any ownership, right to use, use, infringement or any claim, liability or obligation with respect to any Intellectual Property;
(xxi) any other material Contract of any of the Company Entities, whether or not entered into in the Ordinary Course of Business, which shall include, without limitation, any Contract that requires payment by any Company Entity(ies) in excess of $500,000 in any twelve (12) month period that cannot be terminated on less than ninety (90) days’ notice without the payment of any termination fee, premium or breach of which penalty; and
(xxii) each amendment, supplement and modification (whether oral or the failure to obtain consent written) in respect of constitutes a Material Adverse Effectany of the foregoing.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed Except as set forth in Schedule 6.11(b) of the Disclosure Schedules: (i) each Contract identified or required to be listed identified in Section 2.19(aSchedule 6.11(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as Schedules (the “GFI Company Material Contracts.” Except as would not have a material impact on the respective businesses of GFI ”) is in full force and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary effect and is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by ; (ii) each Company Entity is in compliance with all applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer terms and similar laws requirements of general applicability relating to or affecting creditors’ rights or by general equity principles, each Material Contract; (iii) to the Knowledge of GFIthe Company Entities, no other party to any Company Material Contract is in default thereunder; (iv) no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract circumstance exists that (in each case, with or without notice or lapse of time time) may contravene, conflict with or both)result in a Breach of, or give any Company Entity or any other party thereto the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or payment under, or to cancel, terminate or modify, any Company Material Contract; and (ivv) each GFI no Company Entity has waived any material right under any of the Company Material Contracts or modified any material terms thereof. There are no renegotiations of, attempts to renegotiate or outstanding rights to renegotiate any material amounts paid or payable to any of the Company Entities under current or completed Company Material Contracts with any Person having the contractual or statutory right to demand or require such renegotiation and no such Person has made written demand for such renegotiation. No party to any Company Material Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect has exercised any acceleration, cancellation, termination or modification rights with respect to GFI or the GFI Subsidiaries, as applicable, and, to the Knowledge of GFI, with respect to the other parties thereto, and have been delivered no party to any Company Material Contract or made available other Person has notified any of the Company Entities of its intention to Parentdo so.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (SeqLL, Inc.), Agreement and Plan of Reorganization (SeqLL, Inc.)
Contracts. (a) Except for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract as set forth in the Company Disclosure Schedule corresponding to this Section 2.19(a) of the GFI Disclosure Letter3.13(a), neither GFI the Company nor any GFI Company Subsidiary is a party to or bound by, nor are by any of their respective assetsthe following Contracts (collectively, businesses or operations party to, or bound or affected by, or receive benefits under:the “Material Contracts”):
(i) any agreement relating Contract that expressly and materially limits the ability of the Company or any Company Subsidiary to Indebtednesscompete in or conduct any line of business or compete with any Person or in any geographic area or during any period of time;
(ii) any contracts under which GFI Contract with any labor union or labor association representing any employee of the Company or any Company Subsidiary;
(iii) any Contract for the acquisition or sale of any assets or securities of any Person having a fair market value in excess of $1,000,000;
(iv) any Contract relating to the incurrence of Indebtedness (other than borrowings between the Company and any of its wholly-owned Subsidiaries or between any of the GFI Subsidiaries has advanced or loaned any Person any Company’s wholly-owned Subsidiaries) involving amounts in excess of $500,000;
(iii) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(v) any agreement Contract pursuant to which the Company or series of related agreements, including any option agreement, relating to the acquisition or disposition of Company Subsidiary has any business or real property payment obligations (whether by merger, sale of stock, sale of assets contingent or otherwise) for aggregate consideration that could arise after the date of the Team Balance Sheet in excess respect of $2,000,000earn-outs, deferred purchase price arrangements, indemnities or similar arrangements that have arisen in connection with investments in or acquisitions or dispositions of companies or businesses;
(vi) any material agreement with (A) any Person directly Material Contract providing for future payments that are conditioned upon, in whole or indirectly owningin part, controlling a change of control or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiarysimilar event;
(vii) any material joint venture or partnership agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiarysimilar Contract;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in Contract containing any material respect GFI or any GFI Subsidiaryrestrictions on acquisitions of the equity of the counterparty thereto;
(ix) any agreement, other than such agreements entered into in the ordinary course any Contract involving consideration of businessless than $500,000, under which (A) any Person (other than GFI Contract granting or a GFI Subsidiary) has directly obtaining any right to use or indirectly guaranteed practice any rights under any material Company Intellectual Property or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments material intellectual property of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements licenses for the purpose of collection in a off-the-shelf-standard commercially reasonable manner consistent with industry practiceavailable software), unless such guarantor or indemnity obligation is less than $1,000,000(B) any material information technology service Contract and (C) any material intellectual property outsourcing Contract;
(x) other than any other Contracts with physicians that are not employees of the Company or any Company Subsidiary, any employment, consulting, severance or similar agreement with any employee, independent contractor or amendment thereto consultant of the Company or any Company Subsidiary whose current annual cash compensation is in excess of $300,000 that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) is not terminable by the Company or such Company Subsidiary by notice of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date more than 180 days for a cost of Deliveryless than $200,000;
(xi) any agreement under which GFI Contract restricting the payment of dividends or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);other distributions; and
(xii) any agreement that involves expenditures Contracts relating to the leasing of any real or receipts of GFI or any GFI Subsidiary in excess personal property providing for annual rentals of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between 250,000 or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effectmore.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI SubsidiariesMaterial Adverse Effect, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Material Contract is a valid valid, binding and binding agreement enforceable obligation of GFI the Company or a GFI Company Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or the GFI Subsidiaries, as applicable, and, to the Knowledge of GFIthe Company, with respect is in full force and effect, and none of the Company or any Company Subsidiary or, to the Knowledge of the Company, any other parties theretoparty thereto is, and have been delivered or is alleged in writing to be, in violation, default or breach in any material respect under the terms of any such Contract. The Company has made available to ParentPurchaser prior to the date hereof true and correct copies of all Material Contracts, including all amendments and supplements thereto.
Appears in 2 contracts
Sources: Merger Agreement (Erie Shores Emergency Physicians, Inc.), Merger Agreement (Team Health Inc)
Contracts. (a) Except for this Agreementthe Benefit Plans listed on Section 4.12(b) of the Company Schedule of Exceptions, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract as set forth in Section 2.19(a4.15(a) of the GFI Disclosure LetterCompany Schedule of Exceptions, neither GFI the Company nor any GFI Subsidiary of its Subsidiaries is a party to or bound by, nor are as of the date hereof, any of their respective assets, businesses contract (whether written or operations party to, or bound or affected by, or receive benefits under:
oral) (i) any agreement relating to Indebtedness;
(ii) any contracts under which GFI or any of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess of $500,000;
(iii) any that is a “material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(v) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nationscontract” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements entered into in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described such term is defined in Items 601(b)(4) and Item 601(b)(10) of Regulation S-K under of the Securities ActSEC), (ii) that has not been filed as an exhibit purports to limit, curtail or incorporated by reference in restrict the GFI SEC Documents filed prior to ability of the Date of Delivery;
(xi) any agreement under which GFI Company or any GFI of its existing Subsidiaries has granted to compete in any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures geographic area or receipts line of GFI business or restrict the Persons to whom the Company or any GFI Subsidiary of its Subsidiaries may sell products or deliver services, (iii) that is a partnership or joint venture agreement for the acquisition, sale or lease of material properties or assets, including equipment (by merger, purchase or sale of stock or assets or otherwise), with a value at the time of such acquisition, sale or lease in excess of $3,000,000 1,000,000 and entered into since January 1, 2010, (v) with any Governmental Entity that is not a customer, client or supply franchise or any director, Executive Officer of the Company or any of its Subsidiaries or any Affiliate of the Company, (vi) that is a loan or credit agreement, mortgage, indenture, note or other contract or instrument evidencing indebtedness for borrowed money by the Company or any of its Subsidiaries or any contract or instrument pursuant to which indebtedness for borrowed money may be incurred or is guaranteed by the Company or any of its Subsidiaries having an outstanding principal amount in excess of $100,000 individually, (vii) that is a financial derivatives master agreement or confirmation, or futures account opening agreements and/or brokerage statements, evidencing financial hedging or similar trading activities, (viii) that is a voting agreement or registration rights agreement, (ix) that is a mortgage, pledge, security agreement, deed of trust or other contract granting a Lien on any material property or assets of the aggregate per year;
Company or any of its Subsidiaries, (x) that is a contract (other than customer, client, employment, consulting or supply contract) that involves cash consideration of greater than $100,000, (xi) that is a collective bargaining agreement, (xii) that is a “standstill” or similar agreement, (xiii) any material agreement with any Governmental Entity;
that is a contract that restricts or otherwise limits the payment of dividends or other distributions on equity securities, (xiv) any to the extent material agreement between to the business or among Affiliates financial condition of GFI;
the Company and its Subsidiaries, taken as a whole, that is a (A) lease or rental contract, (B) project design or development contract, (C) consulting contract, (D) indemnification contract, (E) license or royalty contract, (F) merchandising, sales representative or distribution contract or (G) contract granting a right of first refusal, offer or first negotiation, or (xv) any Lease for the GFI Leased Real Property, and any other that is a commitment or agreement that relates in any way to the occupancy or use of enter into any of the GFI Leased Real Property; or
foregoing (xvithe contracts and other documents described in clauses (i) through (xv) of this Section 4.15(a) and to which the Company and any agreement of its Subsidiaries is a party to or bound by, all contracts set forth in Section 4.15(a) of the termination or breach Company Schedule of Exceptions and all contracts which or have been filed with the failure SEC prior to obtain consent the date hereof and are still in respect effect as of constitutes a the date hereof, being referred to herein as “Material Adverse EffectContracts”).
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI Neither the Company nor any GFI Subsidiary is andof its Subsidiaries, nor, to the Knowledge of GFICompany’s Knowledge, no any other party isparty, in breach or violation of, or is in default underin the performance, observance or fulfillment of any GFI Contractof the obligations, covenants or conditions contained in any Material Contract to which it is a party, except for such defaults that would not reasonably be expected to have a Company Material Adverse Effect and (ii) each GFI Contract to the Company’s Knowledge, there has not occurred any event that, with the lapse of time or giving of notice or both, would constitute such a default that would reasonably be expected to have a Company Material Adverse Effect. All Material Contracts to which the Company or any of its Subsidiaries is a party, or by which any of their respective assets are bound, are valid and binding agreement of GFI binding, in full force and effect and enforceable against the Company or a GFI any such Subsidiary, as the case may be, enforceable and to the Company’s Knowledge, the other parties thereto in accordance with its their respective terms, except as may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and moratorium or other similar laws of general applicability Laws relating to or affecting creditors’ rights or by general equity principles, (iii) generally and to the Knowledge general principles of GFIequity.
(c) No Material Contract will, no event has occurred which would by its terms, terminate as a result of the Transactions or require any consent from any party thereto in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is order to remain in full force and effect with respect immediately after the Effective Time.
(d) There are no contracts or agreements of the Company having terms or conditions which have had a Company Material Adverse Effect which is continuing or that materially impair the ability of the Company to GFI or the GFI Subsidiaries, conduct its business as applicable, and, to the Knowledge of GFI, with respect to the other parties thereto, and have been delivered or made available to Parentcurrently conducted.
Appears in 2 contracts
Sources: Merger Agreement (Blackbaud Inc), Merger Agreement (Convio, Inc.)
Contracts. (a) Except for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) of the GFI Disclosure Letter, neither GFI nor any GFI Subsidiary is a party to or bound by, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:
(i) any agreement relating to Indebtedness;
(ii) any contracts under which GFI or any of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess of $500,000;
(iii) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(v) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements entered into in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be All Contracts required to be filed as an exhibit exhibits to the Company SEC Documents have been so filed in a timely manner. Section 3.11(a) of the Company Disclosure Letter sets forth a true and complete list of each of the following Contracts to which the Company or any GFI SEC Document Company Subsidiary is a party or by which the Company or any Company Subsidiary or any of their assets or businesses are bound (and any amendments, supplements and modifications thereto):
(1) any Contract that is a “material contract” (as described such term is defined in Items 601(b)(4) and Item 601(b)(10) of Regulation S-K of the Exchange Act other than any such Contract that is not required to be filed under the Securities Actclause (iii)(C) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rightsthereof);
(xii2) any employment Contract that has an aggregate future liability in excess of $1,000,000 and is not terminable by the Company or a Company Subsidiary by notice of not more than 60 days;
(3) any collective bargaining agreement or other Contract with any labor organization, union or association;
(4) any Contract that involves expenditures or receipts limits in any material respect the ability of GFI the Company or any GFI Company Subsidiary (or, following the consummation of the Transactions, would limit in any material respect the ability of Parent or any Parent Subsidiary, including the Surviving Corporation or the Surviving Company) to compete in any line of business or with any Person or in any geographic area;
(5) any Contract that would be required to be disclosed pursuant to Item 404 of Regulation S-K of the Exchange Act;
(6) any Contract for the lease of real property by the Company or any Company Subsidiary that by its terms calls for aggregate annual rent payments of more than $2,000,000 by the Company and the Company Subsidiaries;
(7) any license, sublicense, option or other Contract relating in whole or in part to the Company Intellectual Property (including any license or other Contract under which the Company or a Company Subsidiary is licensee or licensor of any Intellectual Property) or to any Technology, in each case material to the Company and the Company Subsidiaries, taken as a whole, other than licenses granted by the Company or Company Subsidiaries to clients in the Ordinary Course of Business or license agreements for software that is generally commercially available;
(8) any Contract or series of related Contracts relating to indebtedness for borrowed money (i) in excess of $5,000,000 or (ii) that becomes due and payable as a result of the Transactions;
(9) any Contract under which the Company or a Company Subsidiary has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Company Subsidiary), in any such case that is in excess of $10,000,000;
(10) any Contract that provides for any standstill or similar obligations to which the Company or any Company Subsidiary is subject or a beneficiary thereof, which is material to the Company and Company Subsidiaries taken as a whole (or, following the consummation of the Transactions, would be material to Parent or any Parent Subsidiary, including the Surviving Corporation or the Surviving Company);
(11) any Contract (including a purchase order) with any of the Company’s top-50 suppliers (measured by dollar volume of purchases of the Company during the twelve months ended June 30, 2010);
(12) any master services agreement (or similar master agreements), human resources services agreement, administrative services agreement or similar client agreement pursuant to which the Company and/or any of the Company Subsidiaries provides (i) services or products to any client in its benefits outsourcing segment under which the Company and the Company Subsidiaries have recognized or are reasonably expected to recognize more than $10,000,000 in revenues in any fiscal year, (ii) services or products to any client in its HR BPO segment under which the Company and the Company Subsidiaries have recognized or are reasonably expected to recognize more than $10,000,000 in revenues in any fiscal year or (iii) services or products to any client in its consulting segment under which the Company and the Company Subsidiaries have recognized or are reasonably expected to recognize more than $10,000,000 in revenues in any fiscal year;
(13) any Contract for any joint venture, partnership or similar arrangement, or any Contract involving a sharing of revenues, profits, losses, costs, or liabilities by the Company or any Company Subsidiary with any other Person involving a potential combined commitment or payment by the Company and any Company Subsidiary in excess of $3,000,000 in the aggregate per year5,000,000 annually;
(xiii14) any material agreement with other Contract not otherwise required to be disclosed pursuant to this Section 3.11(a) that has an aggregate payment obligation to any Governmental Entity;
(xiv) any material agreement between Person in excess of $20,000,000 and is not terminable by the Company or among Affiliates a Company Subsidiary by notice of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Propertynot more than 60 days; or
(xvi15) any agreement Contract that is material to the termination business of the Company and the Company Subsidiaries, taken as a whole, that would or breach would reasonably be expected to prevent, materially delay or impair the consummation of which or the failure to obtain consent in respect of constitutes a Material Adverse EffectTransactions.
(b) The agreementsTo the Knowledge of the Company, commitments, arrangements and plans, whether written or oral, listed all Contracts set forth or required to be listed set forth in Section 2.19(a3.11(a) of the GFI Company Disclosure Letter together with or filed or required to be filed as exhibits to the GFI License Agreements are referred to herein as Company SEC Documents (the “GFI Company Contracts.” Except as would not have a material impact on ”) are valid, binding and in full force and effect and are enforceable by the respective businesses of GFI and Company or the GFI Subsidiaries, (i) neither GFI nor any GFI applicable Company Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its their terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws Laws affecting the enforcement of general applicability relating to or affecting creditors’ rights generally, by general equitable principles or by general equity principlesthe discretion of any Governmental Entity before which any Proceeding seeking enforcement may be brought and except for such failures to be valid, (iii) binding, in full force and effect or enforceable that, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of GFIthe Company, no event the Company or the applicable Company Subsidiary has occurred which would result in a breach or violation ofperformed all material obligations required to be performed by it under the Company Contracts, or a default under, any GFI Contract and it is not (in each case, with or without notice or lapse of time time, or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with breach or default in any material respect to GFI or the GFI Subsidiaries, as applicable, thereunder and, to the Knowledge of GFIthe Company, no other party to any Company Contract is (with or without notice or lapse of time, or both) in breach or default in any material respect thereunder. Since October 1, 2009, to the other parties theretoKnowledge of the Company, and have been delivered neither the Company nor any of the Company Subsidiaries has received written notice of any actual, alleged, possible or made available potential violation of, or failure to Parentcomply with, any material term or requirement of any Company Contract. To the Knowledge of the Company, neither the Company nor any of the Company Subsidiaries has received any written notice of the intention of any party to terminate any Company Contract.
Appears in 2 contracts
Sources: Merger Agreement (Aon Corp), Merger Agreement (Hewitt Associates Inc)
Contracts. (a) Except for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a3.13(a) of the GFI Company Disclosure LetterLetter sets forth a list of each Contract, neither GFI nor including all amendments, supplements, exhibits and side letters to any GFI such Contract, to which the Company or any Company Subsidiary is a party to or bound by, nor are by which any of their respective assetsits properties or assets are bound which, businesses or operations party to, or bound or affected by, or receive benefits underas of the date of this Agreement:
(i) any agreement relating is required to Indebtednessbe filed as an exhibit to the Company’s Annual Report on Form 10-K pursuant to Item 601(b)(2), (4), (9) or (10) of Regulation S-K promulgated under the Securities Act or required to be disclosed under Item 404 of Regulation S-K under the Securities Act (provided, that the Company shall only be required to list in clause (i) of Section 3.13(a) those Contracts that have not been filed with the SEC on or after January 1, 2015);
(ii) any contracts under which GFI involves aggregate payments by, or other consideration or expenditures from, the Company or any of the GFI Subsidiaries has advanced or loaned any Person any amounts Company Subsidiary in excess of $500,000500,000 over the remaining term of such Contract, and is not cancelable within sixty (60) days without material payment by or penalty to the Company or any Company Subsidiary;
(iii) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company or any Company Subsidiary, or upon consummation of the Transactions, Parent or its Subsidiaries, or which restricts in any material joint venture, partnership, limited liability company, shareholderrespect the conduct of any line of business of the Company or any Company Subsidiary, or other similar agreements upon consummation of the Transactions, Parent or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint ventureits Subsidiaries;
(iv) any material agreement relating to any strategic allianceestablishes a partnership, joint development, joint marketing, partnership venture or similar arrangement;
(v) any agreement or series of related agreements, including any option agreement, relating relates to the acquisition borrowing of money or disposition extension of any business or real property (whether by mergercredit, sale in each case having a principal amount of stock, sale of assets or otherwise) for aggregate consideration Indebtedness in excess of $2,000,0001,000,000 other than accounts receivables and payables incurred or arising in the ordinary course of business consistent with past practice;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of requires the outstanding voting securities of GFI Company or any GFI SubsidiaryCompany Subsidiary to dispose of or acquire assets or properties with a fair market value in excess of $1,000,000, (B) or involves any Person 5% pending or more of the outstanding voting securities of which are directly contemplated merger, consolidation or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiarysimilar business combination;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiaryis a Company Investment Contract;
(viii) requires any agreement delivery of notice or prior consent in connection with the Transactions, where, if such notice or consent were not made or obtained, would give rise to any right of termination, cancellation, acceleration or amendment of, or trigger any payments or the creation of a non-solicitation Lien or “most-favored-nations” pricing provision that purports to limit other encumbrance, or restrict result in any material respect GFI violation of or any GFI Subsidiarybreach of or constitute a default under such Contract in connection with the consummation of the Mergers and the other Transactions;
(ix) any agreement, other than such agreements entered into in the ordinary course of business, under which (A) any Person (other than GFI or is with a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000Governmental Entity;
(x) any other agreement or amendment thereto that would be required relates to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;a Related Party Transaction; or
(xi) contains any agreement under which GFI obligation, contingent or otherwise, on the part of the Company or any GFI of its Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and to indemnify any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse EffectPerson.
(b) The agreements, commitments, arrangements and plansEach Contract of the type described above in Section 3.13(a), whether written or oral, listed or required to be listed not set forth in Section 2.19(a3.13(a) of the GFI Company Disclosure Letter together with the GFI License Agreements are Letter, is referred to herein as the a “GFI ContractsCompany Material Contract.” Except as as, individually or in the aggregate, would not have or reasonably be expected to have a material impact on the respective businesses of GFI and the GFI SubsidiariesCompany Material Adverse Effect, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Company Material Contract is a valid legal, valid, binding and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its termsterms on the Company and each Company Subsidiary that is a party thereto and, to the knowledge of the Company, each other party thereto, and is in full force and effect, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and moratorium or other similar laws of general applicability relating to or Laws affecting creditors’ rights or generally and by general principles of equity principles(regardless of whether enforceability is considered in a proceeding in equity or at Law). Except as, (iii) individually or in the aggregate, would not have or reasonably be expected to have a Company Material Adverse Effect, the Company and each Company Subsidiary has performed all obligations required to be performed by it under each Company Material Contract and, to the Knowledge knowledge of GFIthe Company, no event each other party thereto has occurred which would result performed all obligations required to be performed by it under such Company Material Contract. None of the Company or any Company Subsidiary, nor, to the knowledge of the Company, any other party thereto, is in a material breach or violation of, or a default under, any GFI Contract (in each caseCompany Material Contract, and no event has occurred that with or without notice or lapse of time or both)both would constitute a violation, and (iv) breach or default under any Company Material Contract, except where in each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is case such breach, violation or default, individually or in full force and effect with respect the aggregate, would not have or reasonably be expected to GFI or have a Company Material Adverse Effect. Neither the GFI Subsidiaries, as applicable, andCompany nor any Company Subsidiary has received written or, to the Knowledge knowledge of GFIthe Company, with respect to the other parties thereto, and have been notice of any violation or default under any Company Material Contract.
(c) The Company has delivered or made available to ParentParent or provided to Parent for review, prior to the execution of this Agreement, true and complete copies of all of the Company Material Contracts.
Appears in 2 contracts
Sources: Merger Agreement (Apollo Residential Mortgage, Inc.), Merger Agreement (Apollo Commercial Real Estate Finance, Inc.)
Contracts. (a) Except for as filed as an exhibit to a Company SEC Document prior to the date of this Agreement, and except for the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) of the GFI Disclosure LetterCompany Benefit Plans, neither GFI the Company nor any GFI Company Subsidiary is a party to or bound by, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:
(i) any agreement relating to Indebtednessindebtedness (other than agreements among direct or indirect wholly-owned Company Subsidiaries) in excess of $5 million;
(ii) any contracts under which GFI or any of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess of $500,000;
(iii) any material joint venture, partnership, limited liability company, shareholder, company or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(viii) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any material business or material real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000);
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(viiiv) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI the Company or any GFI Company Subsidiary (or, after the Effective Time, the Surviving Corporation or its Subsidiaries) may engage or the manner or locations in which any of them may so engage in any business including any covenant not to compete or could require the disposition of any material assets or line of business of GFI the Company or any GFI Company Subsidiary;
(viiiv) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI providing for the production by the Company or any GFI SubsidiaryCompany Subsidiary of any product on an exclusive or requirements basis or the purchase by the Company or any Company Subsidiary of any product on an exclusive or output basis;
(ix) any agreement, other than such agreements entered into in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(xvi) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI Company SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-—K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI Company SEC Documents filed prior to the Date date of Deliverythis Agreement;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xiivii) any agreement that involves expenditures or receipts of GFI the Company or any GFI Company Subsidiary in excess of $3,000,000 5 million per year not entered into in the aggregate per yearordinary course of business consistent with past practice;
(xiiiviii) any agreement by which the Company or any Company Subsidiary licenses or otherwise obtains the right to use material agreement with Intellectual Property rights of any Governmental Entity;
other Person (xivother than licenses for readily available commercial software) or by which the Company or any Company Subsidiary is restricted in its right to use or register, or licenses or otherwise permits any other Person to use, enforce, or register any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Company Owned Intellectual Property; or
(xviix) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes would reasonably be expected to result in a Material Adverse EffectEffect on the Company.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a3.18(a) of the GFI Company Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Company Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Each Company Contract is a valid and binding agreement of GFI the Company or a GFI Company Subsidiary, as the case may be, enforceable and is in accordance with its termsfull force and effect, except as may be limited by applicable bankruptcyand none of the Company, insolvencyany Company Subsidiary or, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge knowledge of GFIthe Company, any other party thereto is in default or breach in any material respect under the terms of any such Company Contract; and no event has occurred which would result in a breach or violation ofoccurred, which, after the giving of notice, with lapse of time, or otherwise, would constitute a material default underby the Company or any Company Subsidiary or, to the knowledge of the Company, any GFI Contract (in other party under such Company Contract. True, correct and complete copies of each case, with or without notice or lapse of time or both), and (iv) each GFI such Company Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or the GFI Subsidiaries, as applicable, and, to the Knowledge of GFI, with respect to the other parties thereto, and have been delivered or made available to Parent.
Appears in 2 contracts
Sources: Merger Agreement (CF Industries Holdings, Inc.), Merger Agreement (CF Industries Holdings, Inc.)
Contracts. (a) Except for this AgreementPrior to the date hereof, the CME Merger Agreement Company has made available to the Purchaser true and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby correct copies of, and any contract set SCHEDULE 4.01(P) sets forth in Section 2.19(a) a complete and accurate list of all of the GFI Disclosure Letter, neither GFI nor following contracts or commitments which the Company or any GFI Subsidiary of its subsidiaries is a party to or is bound by(collectively, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:the "CONTRACTS"):
(i) any lease (whether as lessor or lessee) of any interest in any real property and any pending and binding agreement relating to Indebtedness;
purchase or sell any real property; (ii) any contracts under which GFI or lease of any of the GFI Subsidiaries has advanced or loaned any Person any amounts personal property with aggregate annual rental payments in excess of $500,000;
175,000; (iii) any material joint venture, partnership, limited liability company, shareholder, agreement to purchase or other similar agreements sell a capital asset or arrangements relating to the formation, creation, operation, management an interest in any business entity for a price in excess of $175,000 or control a right of any partnership, strategic alliance or joint venture;
first refusal with respect thereto; (iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership the borrowing or similar arrangement;
lending of money other than advances to employees to cover business expenses in the ordinary course of business; (v) any agreement joint venture contract, partnership contract or series similar contract evidencing an ownership interest or a participation in or sharing of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
profits; (vi) any guaranty, contribution agreement or other agreement that includes any material agreement with (A) any Person directly indemnification or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
contribution obligation; (vii) any agreement (including any exclusivity noncompetition agreement) that purports to limit or restrict in any material respect either limiting the type ability of business in which GFI the Company or any GFI Subsidiary may engage or the manner or locations in which any of them may so its subsidiaries to engage in any business or could require the disposition of any material assets or line of business of GFI or in business with any person or restricting the geographical area in which the Company or any GFI Subsidiary;
of its subsidiaries may engage in any business; (viii) any employment, consulting, management, severance or indemnification contract or agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict annual obligations in any material respect GFI or any GFI Subsidiary;
excess of $175,000; (ix) material contracts which are terminable or contracts with annual obligations in excess of $175,000 under which payments by the Company or any agreement, of its subsidiaries may be accelerated upon a change in control of the Company or any of its subsidiaries; and (x) any other agreement which involves the payment of an aggregate annual amount in excess of $175,000 (other than such agreements fee for service contracts entered into in the ordinary course of businessbusiness consistent with past practice) or which is material to the Company and its subsidiaries taken as a whole. Except as disclosed in SCHEDULE 4.01(P)(XI), under which (A) no event has occurred that would, with the passage of time or compliance with any Person (other than GFI applicable notice requirements or both, constitute a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI default by the Company or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilitiesits subsidiaries or, obligations or commitments of to the Company's knowledge, by any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K party under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement Contracts except where the termination default would not, individually or breach of which or in the failure aggregate, reasonably be expected to obtain consent in respect of constitutes a Material Adverse Effect.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact adverse effect on the respective businesses Company. Except as disclosed in SCHEDULE 4.01(P)(XII), to the Company's knowledge, no party to any of GFI the Contracts intends to cancel or terminate any of such Contracts. All of the Contracts are valid and binding obligations of the GFI Subsidiariesparties thereto, are in full force and effect, and are enforceable against the parties thereto in accordance with their terms except (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar other laws of general applicability application affecting enforcement of creditors' rights generally and (ii) as limited by laws relating to or affecting creditors’ rights or by general equity principlesthe availability of specific performance, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation ofinjunctive relief, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or the GFI Subsidiaries, as applicable, and, to the Knowledge of GFI, with respect to the other parties thereto, and have been delivered or made available to Parentequitable remedies.
Appears in 2 contracts
Sources: Merger Agreement (Lamela Luis E), Merger Agreement (Ramsay Youth Services Inc)
Contracts. (a) Except for this Agreementas disclosed in the SEC Reports filed with or furnished to the SEC on or after June 14, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement 2011 or the transactions contemplated thereby and any contract as set forth in Section 2.19(a3.16(a) of the GFI Company Disclosure Letter, as of the date of this Agreement, neither GFI the Company nor any GFI Subsidiary of its Subsidiaries is a party to or bound by, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:
(i) any agreement relating which the Company or any of its Subsidiaries was required to Indebtednessfile as an exhibit under Item 601(b)(10) of Regulation S-K under the Exchange Act or to disclose on a Current Report on Form 8-K that has not been so filed or disclosed;
(ii) any contracts under which GFI agreement or arrangement that limits or otherwise restricts in any material respect the Company or any of its Affiliates or any successor thereto, or that could, after the GFI Effective Time, limit or restrict in any material respect the Surviving Corporation or any of its Affiliates or any successor thereto, from engaging or competing in any line of business or in any geographic area in any manner or restricting the Company or any of its Subsidiaries has advanced or loaned any Person any amounts in excess of $500,000from freely setting prices for its products (including “most favored customer” pricing provisions);
(iii) any material other agreement pursuant to which the Company or any of its Subsidiaries is required to pay or is scheduled to receive (assuming full performance pursuant to the terms thereof) $150,000 or more during the 12-month period following the date of this Agreement;
(iv) with respect to a joint venture, partnership, limited liability company, shareholder, company or other similar agreements agreement or arrangements arrangement, any agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, strategic alliance partnership or joint venture;
(iv) any venture that is material agreement relating to any strategic alliancethe business of the Company and its Subsidiaries, joint development, joint marketing, partnership or similar arrangementtaken as a whole;
(v) any agreement or series of related agreementsindenture, including any option credit agreement, relating loan agreement, security agreement, guarantee, note, mortgage, trust deed or other written agreement for or with respect to the acquisition borrowing of money, a line of credit, any currency exchange, commodities or disposition other hedging arrangement, or a leasing transaction of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration a type required to be capitalized in excess of $2,000,000accordance with GAAP;
(vi) any material written agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of under which the outstanding voting securities of GFI Company or any GFI Subsidiary, (B) of its Subsidiaries has advanced or loaned any other Person 5% or more of amounts in the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiaryaggregate exceeding $25,000;
(vii) any agreement or arrangement involving the acquisition from another Person or disposition to another Person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another Person (A) for aggregate consideration under such contract (or series of related contracts) in excess of $100,000 or (B) that contain representations, warranties, covenants, indemnities or other obligations (including any exclusivity agreement) indemnification, “earn-out” or other contingent obligations), that purports are still in effect and, individually, would reasonably be expected to limit or restrict result in any material respect either payments by the type of business in which GFI Company or any GFI Subsidiary may engage of its Subsidiaries in excess of $100,000 (in the case of each of clause (A) and (B), other than acquisitions or dispositions of inventory in the manner or locations in which any ordinary course of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiarybusiness);
(viii) any agreement with contracts (or a nonseries of related contracts) for the purchase of materials, supplies, goods, services, equipment or other assets providing for either (A) annual payments by the Company and its Subsidiaries of $150,000 or more or (B) aggregate payments by the Company and its Subsidiaries of $200,000 or more, in each case other than (I) those that can be terminated by the Company or any of its Subsidiaries on less than thirty-solicitation one (31) days’ notice without payment by the Company or “most-favored-nations” pricing provision that purports to limit or restrict in any Subsidiary of any material respect GFI or any GFI Subsidiarypenalty and (II) contracts entered into by the Company and its Subsidiaries in the ordinary course of business consistent with past practice;
(ix) any agreementcontracts that are sales, distribution or other similar contracts providing for the sale by the Company or any Subsidiary of materials, supplies, goods, services, equipment or other assets that provide for either (a) annual payments to the Company and its Subsidiaries of $150,000 or more or (b) aggregate payments to the Company and its Subsidiaries of $200,000 or more, in each case other than such agreements (I) those that can be terminated by the Company or any of its Subsidiaries on less than 61 days’ notice without payment by the Company or any Subsidiary of any material penalty and (II) contracts entered into in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner business consistent with industry past practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto arrangement that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) prohibit or materially delay or have a Material Adverse Effect on the Merger and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Deliverytransactions contemplated hereby;
(xi) any agreement under which GFI or contract relating to any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights)currency hedging;
(xii) any agreement that involves expenditures or receipts arrangement prohibiting the payment of GFI dividends or distributions in respect of the capital stock of the Company or any GFI of its wholly owned Subsidiaries, prohibiting the pledging of the capital stock of the Company or any wholly owned Subsidiary in excess of $3,000,000 in the aggregate per yearCompany or prohibiting the issuance of any guaranty by the Company or any wholly owned Subsidiary of the Company;
(xiii) any material agreement license agreements from which the Company and its Subsidiaries, taken as a whole, have received or paid $150,000 or more during the 12-month period ending with the most recent month end preceding the date of this Agreement, pursuant to which the Company or any Governmental Entityof its Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or its Subsidiaries;
(xiv) any material written agreement between that provides for the payment, increase or among Affiliates vesting of GFIany benefits or compensation in connection with the Merger and the transactions contemplated hereby;
(xv) any Lease for written agreement (A) that provides compensation, severance or other benefits or rights to any individual (including to any officer, director, employee or consultant) who currently receives annual compensation from the GFI Leased Real PropertyCompany and/or any of its Subsidiaries of more than $100,000 or (B) pursuant to which the Company is or may become obligated to make any bonus or similar payment (whether in the form of cash or equity securities but excluding payments constituting base salary) to any individual (including to any officer, director, employee or consultant) who currently receives annual compensation from the Company and/or any of its Subsidiaries of more than $100,000;
(xvi) Any written agreement that contains a put, call, collar, right of first refusal or similar right pursuant to which the Company or any of its Subsidiaries would be required to purchase or sell, as applicable, any equity interests of any Person;
(xvii) any material settlement agreement or similar written agreement and any other settlement agreement or similar written agreement with a Governmental Entity, in each case, under which the Company or any of its Subsidiaries has continuing obligations, liabilities or duties;
(xviii) any written agreement that relates grants exclusive rights, rights of refusal, rights of first negotiation or similar rights to any Person or that limits or purports to limit in any way material respect the ability of the Company or any of its Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any material asset or business;
(xix) any written agreement relating to the occupancy sale, issuance, grant, exercise, award, purchase, repurchase or use redemption of any shares of its capital stock or other securities or any options, warrants or other rights to purchase or otherwise acquire any such shares of capital stock, other securities or options, warrants or other rights therefor, except for those written agreements in substantially the form of the GFI Leased Real Propertystandard agreements evidencing Stock Options or Company Awards provided or made available to Parent;
(xx) any written agreement under which the Company has granted any Person any registration rights or under which any Person has granted the Company any registration rights; or
(xvixxi) any other written agreement or group of related written agreements with the termination same party or breach group of affiliated parties (other than this Agreement or agreements between the Company and any of its Subsidiaries or between any of the Subsidiaries of the Company) under which any party to such written agreement or group of related written agreements is obligated to make payments (whether fixed, contingent or otherwise) in excess of $150,000 per annum or $250,000 during the failure to obtain consent in respect life of constitutes a Material Adverse Effectthe written agreement or group of written agreements.
(b) The agreements, commitments, arrangements and plans, whether Except for guarantees related to the Indebtedness relating to any written or oral, listed or required to be listed agreement set forth in Section 2.19(a3.16(a)(v) above, neither the Company nor any of its Subsidiaries is a party to any written agreement of guarantee, support, or assumption with respect to the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of any other Person.
(c) Except as set forth in the Company Financial Statements, neither the Company nor any of its Subsidiaries is a party to any written agreement for or relating to the employment by it of any director, employee or officer or other type of written agreement with any of its directors or officers that is not terminable by it without cost or other liability, including any written agreement requiring it to make a payment to any director, employee or officer as a result of the Merger, any transaction or any written agreement that is entered into in connection with this Agreement.
(d) Except as set forth in the Company Financial Statements, neither the Company nor any of its Subsidiaries is a party to any written agreement in which its officers, directors, employees or shareholders or any members of their immediate families is directly or indirectly interested (whether as a party or otherwise), including, without limitation, any written agreements relating to loans to officers, directors, employees or shareholders or any members of their immediate families.
(e) All Company Contracts are in written form or summarized in Section 3.16(e) of the GFI Company Disclosure Letter together with Letter. The Company has delivered or made available to Parent a true, correct and complete written copy of each Company Contract, including all amendments thereto. Neither the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI Company nor any GFI Subsidiary of its Subsidiaries is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in material default under, under any GFI Contract, (ii) each GFI Company Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach with respect to the Company or violation ofany of its Subsidiaries or, or a default underto the Company’s Knowledge, with respect to any GFI Contract other contracting party, that (in each case, with or without notice or the lapse of time or the giving of notice, or both)) could reasonably be expected to (i) cause a material default under any Company Contract or (ii) give any party (A) the right to accelerate the maturity or performance of any material obligation of the Company or any of its Subsidiaries under any Company Contract, or (B) the right to cancel or terminate any Material Contract. Each of the Company Contracts is, and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is after the consummation of the transactions will continue to be, in full force and effect with respect to GFI or and is the GFI valid, binding and enforceable obligation of the Company and its Subsidiaries, as applicable, and, to the Knowledge of GFIthe Company, with respect to the other parties thereto, except that (x) such enforcement may be subject to applicable bankruptcy, reorganization, insolvency, moratorium or other similar Laws, now or hereafter in effect, affecting creditors’ rights generally and have been delivered or made available (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to Parentequitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
Appears in 2 contracts
Sources: Merger Agreement (Frederick's of Hollywood Group Inc /Ny/), Merger Agreement (FOHG Holdings, LLC)
Contracts. The Company Disclosure Schedule lists all written and oral contracts and other written agreements, arrangements and understandings (a“Contracts”) Except for this Agreement, the CME Merger Agreement and to which any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) of the GFI Disclosure Letter, neither GFI nor any GFI Subsidiary Company and its Subsidiaries is a party to or bound by, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits underis bound:
(i) any agreement relating to Indebtednesswhere the performance of which will involve consideration in excess of $100,000;
(ii) any contracts under which GFI restrict the Company or any of its Subsidiaries from engaging in any line of business in any geographic area or competing with any person or entity or restricting the GFI ability of the Company or any of its Subsidiaries has advanced or loaned from acquiring equity securities of any Person any amounts in excess of $500,000Person;
(iii) which are employment, engagement, consulting or severance contracts applicable to any material joint ventureemployee, partnershipofficer, limited liability companydirector, shareholderconsultant, stockholder, distributor, dealer or other similar agreements or arrangements relating to the formation, creation, operation, management or control sales representative of any partnership, strategic alliance of the Company or joint venturea Subsidiary;
(iv) any material agreement relating to any strategic alliancewhich are acquisition, disposition, joint development, joint marketing, partnership venture or similar arrangementagreements (each, an “Acquisition or Divestiture Agreement”);
(v) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition which is an evidence of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000Indebtedness;
(vi) which is an intercompany agreement, including without limitation, any material agreement with (A) any Person directly tax sharing, expense sharing, employee leasing or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiaryother similar agreement;
(vii) which is a contract with any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI SubsidiaryGovernmental Authority;
(viii) which is a lease pursuant to which the Company leases (as lessor or lessee) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict personal property in any material respect GFI or any GFI Subsidiaryexcess of $100,000;
(ix) any which is an agreement, other than such agreements entered into in arrangement or program pursuant to which the ordinary course of business, under which Company has offered or made available to its customers (Aincluding its distributors) any Person (other than GFI volume discount, rebate or a GFI Subsidiary) has directly advertising or indirectly guaranteed promotional credit or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000allowance;
(x) any other which is an agreement with a customer which provides for a rebate, lowest price guarantee or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Deliveryvolume discount;
(xi) any agreement which is a guaranty under which GFI the Company is a guarantor or otherwise responsible for any GFI Subsidiaries has granted any Person registration rights liability or obligation (including demand and piggy-back registration rights)Indebtedness) of any other Person;
(xii) any agreement that involves expenditures or receipts which is an outstanding power of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per yearattorney;
(xiii) any which is an other agreement or commitment which is material agreement with any Governmental Entity;to the Company or its business or operations; or
(xiv) which is a management, administrative services or data processing Contract (the Contracts in clause (i)-(xiv), each a “KCI Contract” and collectively, the “KCI Contracts”). Except as set forth in the Company Disclosure Schedule, there are no continuing or contingent payment obligations under any material agreement between Acquisition or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real PropertyDivestiture Agreement, and there are no outstanding indemnity claims under any other agreement that relates Acquisition or Divestiture Agreement. The Company has made available to Purchaser a correct and complete copy of each of the KCI Contracts. With respect to each KCI Contract: (A) the KCI Contract is legal, binding, enforceable, and in any way full force and effect, subject to the occupancy laws of general application relating to bankruptcy, insolvency and relief of debtors and rules of law governing specific performance, injunctive relief or use of any other equitable remedies; and (B) none of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effect.
(b) The agreementsCompany and its Subsidiaries is, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFIthe Company, no other party is, in breach or violation ofdefault, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time would constitute a breach or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect default. Neither the Company nor any Subsidiary has received or given any written notice of an intention to GFI cancel or the GFI Subsidiaries, as applicable, and, to the Knowledge of GFI, with respect to the other parties thereto, and have been delivered or made available to Parentterminate any KCI Contract.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Actuant Corp), Stock Purchase Agreement (Actuant Corp)
Contracts. (ai) Except for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a3.01(j) of the GFI Company Disclosure LetterSchedule sets forth each contract, neither GFI nor commitment, agreement, lease, instrument, arrangement, understanding, obligation or undertaking to which the Company or any GFI Subsidiary of its subsidiaries is a party or by or to or bound by, nor are which any of their respective assets, businesses or operations party to, or properties are bound or affected bysubject that is material to the business of the Company and its subsidiaries, taken as a whole, including any such contract, commitment, agreement, lease, instrument, arrangement, understanding, obligation or receive benefits underundertaking:
(iA) pursuant to which the Company or any agreement relating of its subsidiaries has agreed not to Indebtednesscompete with any person, or to actively engage, in any line of business;
(iiB) any contracts under pursuant to which GFI the Company or any of the GFI Subsidiaries its subsidiaries has advanced or loaned any Person any amounts in excess of $500,000;
(iii) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar entered into an exclusive distributorship arrangement;
(vC) with (1) any agreement or series beneficial owner of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more than one percent of the outstanding voting securities Company Common Stock or more than one percent of GFI the capital stock of any of the Company's subsidiaries, (2) any affiliate of the Company or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary its subsidiaries or (C3) any current or former director director, officer, employee or officer consultant of GFI the Company or any GFI Subsidiary related to voting Securities of GFI its subsidiaries or of any affiliate of the Company or any GFI Subsidiaryof its subsidiaries (other than pursuant to Benefit Agreements or Benefit Plans);
(viiD) that grants exclusive license rights to material Intellectual Property of the Company;
(E) under which the Company or any agreement of its subsidiaries has (1) incurred any indebtedness for borrowed money that is currently owing or (2) given any guarantee in respect of indebtedness for repayment of borrowed money, in each case having an aggregate principal amount in excess of $100,000;
(F) that contains any guarantees as to the Company's or any of its subsidiaries future revenues or operating income;
(G) that is otherwise material and that requires any consent (including any exclusivity agreementconsent to assignment) that purports of or notice to limit or restrict in any material respect either the type of business in which GFI a third party, or any GFI Subsidiary may engage approval, authorization, qualification or order of any Governmental Entity, in connection with this Agreement or the manner consummation of the transactions contemplated hereby in order to avoid termination of or locations in which any loss of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiarybenefits thereunder;
(viiiH) any agreement with providing for payments of royalties to third parties at a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict current rate in any material respect GFI or any GFI Subsidiaryexcess of $100,000 per year;
(ixI) any agreement, other than such agreements entered into not made in the ordinary course of businessbusiness granting a third party any license to any material Intellectual Property rights of the Company or any of its subsidiaries, under which other than "shrink-wrap" licenses or licenses granted in connection with the sale of products;
(AJ) providing confidential treatment by the Company or any Person of its subsidiaries of third party information, other than (1) nondisclosure agreements entered into by the Company or any of its subsidiaries in the ordinary course of business or (2) the Confidentiality Agreement;
(K) granting the other party thereto or a third party "most favored nation" status that, following consummation of the Merger, would in any way apply to Parent or any of its subsidiaries (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) Company and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand its subsidiaries and piggy-back registration rightstheir products);
(xiiL) any agreement that involves expenditures or receipts of GFI pursuant to which the Company or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) its subsidiaries receives or has a continuing obligation to purchase any information technology services or information technology products that are material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any conduct of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effect.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) business of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein Company and its subsidiaries, taken as the “GFI Contractsa whole.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or the GFI Subsidiaries, as applicable, and, to the Knowledge of GFI, with respect to the other parties thereto, and have been delivered or made available to Parent.
Appears in 2 contracts
Sources: Merger Agreement (Dupont E I De Nemours & Co), Merger Agreement (Chemfirst Inc)
Contracts. (a) Except for this AgreementTSG has provided SJET with the following contracts, the CME Merger Agreement agreements, leases, licenses, arrangements, commitments, sales orders, purchase orders or any claim or right or any benefit or obligation arising there under or resulting there from and any agreements contemplated by CME Merger Agreement currently in effect, whether oral or the transactions contemplated thereby and any contract set forth in Section 2.19(a) of the GFI Disclosure Letterwritten, neither GFI nor any GFI Subsidiary to which TSG is a party to or bound by, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:("Contracts"):
(i) any agreement relating Contract (or group of related Contracts) for the lease of personal property to Indebtednessor from any person providing for lease payments in excess of $10,000 per annum;
(ii) any contracts under Contract (or group of related Contracts) for the purchase or sale of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which GFI will extend over a period of more than one year, result in a loss to TSG, or any of the GFI Subsidiaries has advanced or loaned any Person any amounts involve consideration in excess of $500,00010,000;
(iii) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance Contract concerning a partnership or joint venture;
(iv) any material agreement relating to Contract (or group of related Contracts) under which it has created, incurred, assumed, or guaranteed any strategic allianceindebtedness for borrowed money, joint developmentor any capitalized lease obligation or under which it has imposed a lien on any of its assets, joint marketing, partnership tangible or similar arrangementintangible;
(v) any agreement Contract concerning confidentiality or series of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000noncompetition;
(vi) any material agreement with (A) any Person directly profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance or indirectly owning, controlling other plan or holding with power to vote, 5% or more arrangement for the benefit of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any its current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiarydirectors, officers, and employees;
(vii) any agreement (including Contract under which its has advanced or loaned any exclusivity agreement) that purports amount to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require its directors, officers, and employees outside the disposition ordinary course of any material assets or line of business of GFI or any GFI Subsidiarybusiness;
(viii) any agreement Contract under which the consent of the other party thereto is required in connection with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict the assignment of such Contract in any material respect GFI or any GFI Subsidiaryconnection with the transaction contemplated hereby;
(ix) any agreement, other than such agreements entered into in the ordinary course of business, Contract under which (A) any Person (other than GFI the consequences of a default or termination could have a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;material adverse effect on TSG; or
(x) any other agreement Contract (or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4group of related Contracts) and 601(b)(10) the performance of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary consideration in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effect10,000.
(b) The agreements, commitments, arrangements All Contracts have been duly authorized and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is delivered by TSG and, to the Knowledge of GFIany third party thereto, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is are in full force and effect with respect to GFI or against TSG and constitute the GFI Subsidiaries, as applicable, valid and binding obligations of TSG and, the respective parties thereto enforceable in accordance with their respective terms. As to the Knowledge of GFIContracts, with respect to (i) there are no existing breaches or defaults by TSG there under or, by the other parties theretoto such Contracts; (ii) no event, act or omission has occurred or, as a result of the consummation of the transactions contemplated hereby, will occur which (with or without notice, lapse of time or the happening or occurrence of any other event) would result in a default by TSG there under or give cause for termination thereof, provided that insofar as the foregoing representation involves the actions or omissions of parties other than TSG, it shall be limited to the Best Knowledge of TSG; (iii) none of them will result in any loss TSG upon completion or performance thereof; and (iv) none of the parties to the Contracts have been delivered expressed and indication to TSG of their intention to cancel, renegotiate, or made available to Parentexercise or not exercise any option under any such Contract.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Sonic Jet Performance Inc), Stock Purchase Agreement (Sonic Jet Performance Inc)
Contracts. (a) Except for as filed as an exhibit to a Company SEC Document prior to the date of this Agreement, and except for the CME Merger Agreement and any Company Benefit Plans, each of the following contracts, agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract arrangements are set forth in Section 2.19(a3.18(a) of the GFI Company Disclosure Letter, neither GFI nor any GFI Subsidiary is a party to or bound by, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:
(i) any agreement relating to Indebtednessthe borrowing of money or the extension of credit (other than agreements among direct or indirect wholly owned Company Subsidiaries, and other than any agreements that generate trade payables or other accounts payable in the ordinary course of business consistent with past practice);
(ii) any contracts under which GFI or any of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess of $500,000;
(iii) any material joint venture, partnership, limited liability company, shareholder, company or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(viii) any agreement or series of related agreements, including any option agreement, entered into after January 1, 2010 or not yet consummated, relating to the acquisition or disposition of any material business or material real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000);
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(viiiv) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI the Company or any GFI Company Subsidiary (or, after the Effective Time, the Surviving Corporation or its Subsidiaries) may engage or the manner or locations in which any of them may so engage in any business in which the Company is currently engaged including any covenant not to compete, or that could require the disposition of any material assets or line of business of GFI the Company or any GFI Company Subsidiary;
(v) any agreement providing for the production by the Company or any Company Subsidiary of any product on an exclusive or requirements basis or the purchase by the Company or any Company Subsidiary of any product on an exclusive or output basis, in each case not entered into in the ordinary course of business consistent with past practice;
(vi) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), other than Company Benefit Plans;
(vii) any agreement or series of related agreements entered into after January 1, 2010 or not yet consummated that involve expenditures or receipts of the Company or any Company Subsidiary in excess of $50,000 individually or $100,000 in the aggregate for a series of related agreements per year, in each case, that are not entered into in the ordinary course of business consistent with past practice;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI by which the Company or any GFI Subsidiary;
(ix) any agreement, other than such agreements entered into in Company Subsidiary licenses or otherwise obtains the ordinary course of business, under which (A) any Person (other than GFI right to use material Intellectual Property rights or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments trade secrets of any other Person (other than GFI licenses for readily available commercial software) or a GFI Subsidiary) (by which the Company or any Company Subsidiary is restricted in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice)its right to use or register, unless such guarantor or indemnity obligation is less than $1,000,000;
(x) licenses or otherwise permits any other agreement Person to use, enforce, or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) register any material agreement with any Governmental Entity;
(xiv) any material agreement between Company Owned Intellectual Property or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Propertytrade secrets; or
(xviix) any agreement the termination or breach of which or the failure would reasonably be expected to obtain consent result in respect of constitutes a Material Adverse EffectEffect on the Company.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or plans that are required to be listed set forth in Section 2.19(a3.18(a) of the GFI Company Disclosure Letter together with Letter, or that would be required to be set forth but for the GFI License Agreements filing thereof as exhibits to the Company SEC Documents, are referred to herein as the “GFI Company Contracts.” Except as with respect to matters that, individually or in the aggregate, have not resulted in and would not have reasonably be expected to result in a material impact Material Adverse Effect on the respective businesses of GFI and the GFI SubsidiariesCompany, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Company Contract is a valid and binding agreement of GFI the Company or a GFI Company Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, fraudulent transfer moratorium and similar laws Laws of general applicability relating to or affecting creditors’ rights or by and to general equity principlesprinciples (regardless of whether such enforceability is considered in a proceeding at equity or law), (iii) and is in full force and effect, and none of the Company, any Company Subsidiary or, to the Knowledge knowledge of GFIthe Company, any other party thereto is in default or breach in any material respect under the terms of any such Company Contract; and since January 1, 2010, neither the Company nor any Company Subsidiary, as the case may be, has waived any material right or relinquished any material benefit under any such Company Contract; and no event has occurred which would result in a breach or violation ofoccurred, which, after the giving of notice, with lapse of time, or otherwise, would constitute a material default underby the Company or any Company Subsidiary or, to the knowledge of the Company, any GFI Contract (in other party under such Company Contract. True, correct and complete copies of each case, with or without notice or lapse of time or both), and (iv) each GFI such Company Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or the GFI Subsidiaries, as applicable, and, to the Knowledge of GFI, with respect to the other parties thereto, and have been delivered or made available to Parent.
Appears in 2 contracts
Sources: Merger Agreement (Superior Well Services, INC), Merger Agreement (Nabors Industries LTD)
Contracts. Section 5.12 of the Disclosure Schedule sets forth a complete and accurate list of all of the following Contracts to which any Transferred Company is a party or by which it is bound:
(a) Except Contracts for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) sale of the GFI Disclosure Letter, neither GFI nor any GFI Subsidiary is a party to or bound by, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:
(i) any agreement relating to Indebtedness;
(ii) any contracts under which GFI or any of the GFI Subsidiaries has advanced assets of any Transferred Company other than in the ordinary course of business or loaned for the grant to any Person any amounts in excess of $500,000;
(iii) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating preferential rights to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(v) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which purchase any of them may so engage in any business or could require the disposition of any material such assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements entered into in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose consideration in excess of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(xb) any other agreement Contracts for joint ventures, partnerships or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) sharing of Regulation S-K under the Securities Act) that has not been filed as an exhibit to profits or incorporated by reference in the GFI SEC Documents filed prior to the Date of Deliveryproprietary information;
(xic) Contracts containing covenants not to compete in any agreement under which GFI line of business or any GFI Subsidiaries has granted with any Person registration rights (including demand and piggy-back registration rights)in any geographical area;
(xiid) Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) of any agreement that involves expenditures operating business or receipts material assets or the capital stock of GFI or any GFI Subsidiary other Person for consideration in excess of $3,000,000 2,000,000, other than any such acquisitions in the aggregate per yearordinary course of business or reflected in the capital expenditure budget information provided to Parent;
(xiiie) outstanding Contracts of Indebtedness or guaranty or surety of material Indebtedness or indemnification of any amount in excess of $500,000, other than in the ordinary course of business;
(f) any Contract under which any Transferred Company has advanced or loaned any amount to any of its directors, officers and employees;
(g) any material agreement with Contracts between any Governmental Entityof the Transferred Companies, on the one hand, and ED&F or any Affiliate of ED&F, on the other hand;
(xivh) any material agreement between or among Affiliates of GFIcollective bargaining Contracts;
(xvi) any Lease Contracts outside the ordinary course of business for the GFI Leased Real Propertystorage, and any other agreement that relates in any way to the occupancy treatment, disposal, investigation or use remediation of Hazardous Substances;
(j) Contracts providing for indemnification of any officer or director of the GFI Leased Real Propertya Transferred Company, other than any existing directors’ and officers’ insurance policy and as provided in organizational documents of any such company, as currently in effect; orand
(xvik) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effect.
other Contracts (b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be other than those listed in Section 2.19(aclauses (a) through (j) of this Section 5.12 and other than the GFI Disclosure Letter together Employment Contracts) (A) with a term longer than 180 days from the GFI License Agreements date hereof that involve payments by any Transferred Company in excess of $1,000,000 per year; or (B) with a term less than one (1) year from the date hereof that involve payments by any Transferred Company in excess of $1,000,000, that are referred to herein as the “GFI Contracts.” Except as would not have a material impact terminable without premium or penalty on the respective businesses of GFI and the GFI Subsidiariesless than 30 days’ notice, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse such Contracts that are related primarily to a business included in the Business. Except as set forth in Section 5.12 of time or both)the Disclosure Schedule, and (ivassuming due authorization, execution and delivery by the other parties thereto, each Contract listed in Section 5.12 of the Disclosure Schedule, each Employment Contract, each Lease listed in Section 5.9(a) of the Disclosure Schedule and each GFI material Contract (including all modifications pertaining to Intellectual Property to which a Transferred Company is a party is valid and amendments is binding on each Transferred Company party thereto and, to ED&F’s Knowledge, each other party thereto and waivers thereunder) is in full force and effect with effect. Except as set forth in Section 5.12 of the Disclosure Schedule, no Transferred Company nor, to ED&F’s Knowledge, any other party thereto is in default or breach in any material respect to GFI under the terms of, nor has any Transferred Company received any notice of any material default or the GFI Subsidiariesbreach under, as applicableany such Contract or Lease, and, to the Knowledge of GFIED&F’s Knowledge, no event or circumstance has occurred that, with respect to the other parties theretopassage of time or the giving of notice or both, and have been would constitute a material default thereunder or would permit material modification, acceleration, or termination of any such Contract or the loss of any material benefit thereunder. ED&F has delivered or made available to ParentParent copies of all of the written Contracts listed in Section 5.12 of the Disclosure Schedule and of all of the written Employment Contracts that are true, correct and complete in all material respects, together with all material amendments thereto.
Appears in 2 contracts
Sources: Transaction Agreement (Shermen WSC Acquisition Corp), Transaction Agreement (Shermen WSC Acquisition Corp)
Contracts. (a) Except for this AgreementSCHEDULE 3.08(A) to the Company Disclosure Schedule and the Company SEC Documents contain a complete and accurate list, and the CME Merger Agreement Company has delivered or made available to Veeco true and any agreements contemplated by CME Merger Agreement or complete copies (or, in the transactions contemplated thereby and any contract set forth in Section 2.19(a) case of the GFI Disclosure Letteroral Contracts, neither GFI nor any GFI Subsidiary is a party to or bound bysummaries), nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits underof:
(i) each Contract that is executory in whole or in part and involves performance of services or delivery of goods or materials by the Company or any agreement relating to Indebtednessother Acquired Corporation of an amount or value in excess of $250,000;
(ii) any contracts under which GFI each Contract that is executory in whole or any of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess of $500,000;
(iii) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(v) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements part and was not entered into in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) business and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI the Company or any GFI Subsidiary other Acquired Corporation in excess of $3,000,000 250,000;
(iii) each lease, rental or occupancy agreement, license agreement, installment and conditional sale agreement, and any other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property of any Acquired Corporation (except personal property leases and installment and conditional sales agreements having a value per item or annual payments of less than $175,000);
(iv) other than licensing agreements entered into in connection with product sales in the aggregate per yearordinary course of the Company's or the other Acquired Corporations' business, each material licensing agreement or any other material Contract with respect to patents, trademarks, copyrights or other Intellectual Property, including material Contracts with current or former employees, consultants or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property;
(v) each collective bargaining agreement and any other Contract to or with any labor union or other employee representative of a group of employees of any Acquired Corporation;
(vi) each joint venture, partnership and any other material Contract (however named) involving a sharing of profits, losses, costs or liabilities by an Acquired Corporation with any other Person;
(vii) each Contract containing covenants that in any way purport to restrict the business activity of an Acquired Corporation or limit the freedom of an Acquired Corporation to engage in any line of business or to compete with any Person;
(viii) each Contract providing for material payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(ix) each power of attorney that is currently effective and outstanding granted by and relating to an Acquired Corporation;
(x) each Contract that contains or provides for an express undertaking by an Acquired Corporation to be responsible for consequential damages;
(xi) each Contract that is executory in whole or in part and involves capital expenditures by an Acquired Corporation in excess of $250,000;
(xii) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by an Acquired Corporation other than in the ordinary course of business; and
(xiii) any material agreement each Contract with any Governmental Entity;
(xiv) any material agreement between employee, director or among Affiliates officer of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effectan Acquired Corporation.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or the GFI Subsidiaries, as applicable, and, to the Knowledge of GFI, with respect to the other parties thereto, and have been delivered or made available to Parent.
Appears in 2 contracts
Sources: Merger Agreement (Veeco Instruments Inc), Merger Agreement (Veeco Instruments Inc)
Contracts. (a) Except for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth (i) those Contracts listed in Section 2.19(a2.22(a) of the GFI Company Disclosure LetterSchedule, indicating for each Contract the applicable sub-section of this Section 2.22(a), or (ii) filed as exhibits to the Company SEC Documents (such Contracts, together with the Contracts listed in Section 2.10(c), Section 2.13(b) and Section 2.21 of the Company Disclosure Schedule, being collectively referred to herein as the “Material Contracts”) neither GFI the Company nor any GFI Subsidiary of its subsidiaries is a party to or bound by, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:
(i) any agreement relating distributor, sales, agency or manufacturer’s representative, consulting or technology sharing arrangements involving in the case of any such Contract or arrangement payments of more than (or that could reasonably be expected to Indebtednessbe more than) $100,000 over any twelve (12) consecutive month period;
(ii) any contracts under which GFI continuing Contract with vendors for the purchase of materials, supplies, equipment or services involving in the case of any such Contract payments of the GFI Subsidiaries has advanced or loaned more than $100,000 over any Person any amounts in excess of $500,000twelve (12) consecutive month period;
(iii) any material joint venturetrust indenture, partnershipmortgage, limited liability companypromissory note, shareholder, loan agreement or other similar agreements Contract for the borrowing of money or arrangements relating indebtedness, any currency exchange, commodities or other hedging arrangement or any leasing transaction of the type required to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venturebe capitalized in accordance with GAAP;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangementContract for capital expenditures in excess of $100,000 in the aggregate;
(v) any agreement Contract limiting, or series purporting to limit, in any material respect, the freedom of related agreementsthe Company or its subsidiaries or affiliates at any time to engage in any line of business, to acquire any product or asset from any other Person outside the ordinary course of business, to sell any product or asset to, or to perform any service for, any Person outside the ordinary course of business, or to compete with any other Person, including any option agreementContract providing for exclusivity or any similar requirement, relating granting to the acquisition other party “most favored nation” terms, or disposition which could limit in any material respect the freedom of any the Surviving Corporation to continue the development, manufacture, marketing or distribution of the Company’s products and services or operation of the Company’s business or real property (whether by merger, sale after the Effective Time in substantially the same manner as the Company as of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000the Execution Date;
(vi) any material agreement with (A) any Person directly confidentiality, secrecy or indirectly owningnon-disclosure Contract that, controlling individually, materially affects or holding with power could be reasonably anticipated to vote, 5% materially affect the business or more operations of the outstanding voting securities of GFI Company or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiaryits subsidiaries;
(vii) any agreement (including any exclusivity agreement) that purports Contract pursuant to limit or restrict in any material respect either which the type of business in which GFI Company or any GFI Subsidiary may engage of its subsidiaries is a lessor of real property or any machinery, equipment, motor vehicles, office furniture, fixtures or other tangible personal property involving in the manner or locations in which any of them may so engage in any business or could require the disposition case of any material assets or line such tangible personal property contact more than $100,000 over the life of business of GFI or any GFI Subsidiarythe Contract;
(viii) any agreement Contract with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI Person with whom the Company does not deal at arm’s length, including any affiliate of the Company or any GFI Subsidiaryof its subsidiaries;
(ix) any agreementContract that provides for the indemnification of any officer, other than such agreements entered into in director, employee or agent outside of the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any agreement of guarantee, support, indemnification, assumption or endorsement of, or any similar commitment with respect to, the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of DeliveryPerson;
(xi) any agreement under Contract pursuant to which GFI any bank or financial institution provides or supplies vault cash to the Company or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights)of its subsidiaries;
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per yearContract with an armored car carrier;
(xiii) any material agreement with any Governmental Entityjoint venture, partnership or joint research and development Contract;
(xiv) any material agreement between Contract the terms of which materially change upon the occurrence of the Merger or among Affiliates a change of GFI;control or any Contract that impairs or reduces the Company’s rights, accelerates or increases the Company’s obligations, or gives any party thereto other than the Company the right to terminate the Contract upon the occurrence of the Merger or a change of control, which change, impairment, reduction, acceleration, increase or termination would, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect; or
(xv) any Lease for the GFI Leased Real Property, and any other agreement Contract that relates in any way is a material Contract to the occupancy Company or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effectits subsidiaries.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required Neither the Company nor its subsidiaries is a party to be listed in Section 2.19(a) any Contract with a customer of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, Company that: (i) neither GFI nor incorporates by reference all or any GFI Subsidiary is and, portion of such customer’s request for proposal (i.e. “RFP”) or the Company’s response to the Knowledge of GFI, no other party is, in breach or violation ofsuch RFP, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI terminable by the customer upon providing thirty (30) days or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) less prior notice to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or the GFI Subsidiaries, as applicable, and, to the Knowledge of GFI, with respect to the other parties thereto, and have been delivered or made available to ParentCompany.
Appears in 2 contracts
Sources: Merger Agreement (Cash Systems Inc), Merger Agreement (Global Cash Access Holdings, Inc.)
Contracts. The Company has provided to each Investor that has made a request (aincluding via access in any virtual data room) Except for this Agreementor such Investor’s representatives true, the CME Merger Agreement correct and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) complete copies of each of the GFI Disclosure Letter, neither GFI nor following to which the Company or any GFI Company Subsidiary is a party to or bound byparty, nor are any each of their respective assetswhich has been Previously Disclosed (each, businesses or operations party to, or bound or affected by, or receive benefits under:a “Material Contract”):
(i) any contract or agreement relating to Indebtednessindebtedness of the Company or any Company Subsidiary for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the Ordinary Course of Business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $300,000, except for those issued in the Ordinary Course of Business;
(ii) any contracts under which GFI contract or agreement limiting, in any material respect, the ability of the Company or any of the GFI Company Subsidiaries has advanced to engage in any line of business or loaned to compete, whether by restricting territories, customers or otherwise, or in any Person other material respect, with any amounts in excess of $500,000Person;
(iii) any material joint venture, partnership, limited liability company, shareholder, contract or other similar agreements agreement that concerns the sale or arrangements relating to the formation, creation, operation, management or control acquisition of any partnership, strategic alliance or joint venturematerial portion of the Company’s business;
(iv) any material agreement relating to any strategic alliance, joint developmentcooperation, joint marketingventure, shareholders, partnership or similar arrangementagreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(v) any contract or agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration involving annual payments in excess of $2,000,000300,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 60 days’ notice;
(vi) any material agreement with (A) any Person directly hedge, collar, option, forward purchasing, swap, derivative or indirectly owningsimilar agreement, controlling understanding or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiaryundertaking;
(vii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the Ordinary Course of Business; and
(including viii) any exclusivity agreementcontract or agreement containing any (x) that non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any material respect either the type ability of business in which GFI the Company or any GFI Company Subsidiary may engage to solicit customers or the manner in which, or locations the localities in which which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right that limits or purports to limit the ability of the Company or any of them may so engage in any business the Company Subsidiaries to own, operate, sell, transfer, pledge or could require the disposition otherwise dispose of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements entered into in the ordinary course of business, under which . Each Material Contract (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilitiesis legal, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effect.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or on the Company and the Company Subsidiaries which are a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating party to or affecting creditors’ rights or by general equity principlessuch contract, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunderB) is in full force and effect and enforceable in accordance with respect its terms and (C) will continue to GFI or be legal, valid, binding, enforceable, and in full force and effect in all material respects following the GFI consummation of the transactions contemplated by this Agreement. Neither the Company nor any of the Company Subsidiaries, as applicable, and, nor to the Knowledge of GFIthe Company, with respect any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by this Agreement. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and have been delivered to the Knowledge of the Company, no event has occurred that with notice or made available to Parentlapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material Contracts.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Professional Holding Corp.), Stock Purchase Agreement (Professional Holding Corp.)
Contracts. (a) Except for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a6.13 (a) of the GFI Parent Disclosure Letter, neither GFI nor Letter lists the following Contracts to which Parent or any GFI Subsidiary of its Subsidiaries is a party that are in effect as of the date hereof:
(i) each “material contract” (as such term is defined in Item 10.C and in Instructions As To Exhibits of Form 20-F) to which Parent or any of its Subsidiaries is a party to or bound by, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:
(i) any agreement relating to Indebtednessbound;
(ii) any contracts under which GFI each Contract not contemplated by this Agreement that materially limits the ability of Parent or any of the GFI its Subsidiaries has advanced to engage in its business or loaned compete in any Person any amounts in excess of $500,000manner;
(iii) any material joint venture, each Contract that creates a partnership, limited liability company, shareholder, joint venture or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance with respect to Parent or joint ventureany of its Subsidiaries, other than the organizational documents of Parent or its Subsidiaries;
(iv) any material agreement relating to any strategic allianceeach employment, joint developmentconsulting, joint marketing, partnership services or similar arrangementContract with any employee, consultant or independent contractor of Parent or any of its Subsidiaries;
(v) any agreement or series of related agreementseach indenture, including any option credit agreement, relating loan agreement, security agreement, guarantee, note, mortgage or other evidence of Indebtedness or Contract providing for Indebtedness in excess of $1,000,000;
(vi) each Contract that relates to the acquisition or disposition disposition, directly or indirectly, of any material business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) or material asset, including any material agreement with (A) any Person directly or indirectly owningvessel, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiaryother than this Agreement;
(vii) any agreement each Contract that relates to the acquisition or disposition, directly or indirectly (whether by merger, sale of stock, sale of assets (including any exclusivity agreementParent Vessel) that purports to limit or restrict in otherwise), by Parent or any of its Subsidiaries after the date of this Agreement of assets or any material respect either the type business for consideration with a fair market value in excess of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary$1,000,000;
(viii) any agreement with a non-solicitation Contract related to the acquisition or “most-favored-nations” pricing provision that purports to limit disposition, directly or restrict in any material respect GFI indirectly (by merger, sale of stock, sale of assets or otherwise), by Parent or any GFI Subsidiaryof its Subsidiaries prior to the date of this Agreement that includes provisions that are in effect in respect of “earn-outs” or deferred or contingent consideration;
(ix) each ship-sales, memorandum of agreement, bareboat charter or other vessel acquisition Contract for Newbuildings and secondhand vessels contracted for by Parent or any of its Subsidiaries and other Contracts with respect to Newbuildings and the financing thereof, including performance guarantees, counter guarantees, refund guarantees, material supervision agreements and material plan verification services agreements;
(x) each operating agreement, management agreement, crewing agreement, Contract of affreightment or financial lease (including sale/leaseback or similar arrangements) with respect to any Parent Vessel;
(xi) any Contract with a Third Party for the charter of any Parent Vessel, other than such agreements any (A) voyage charter or (B) time charter with a duration of 12 months or less;
(xii) each collective bargaining agreement or other Contract with a labor union to which Parent or any of its Subsidiaries is a party or otherwise bound;
(xiii) each Contract that provides for indemnification by Parent or any of its Subsidiaries to any Person other than a Contract entered into in the ordinary course of business, under which (A) any Person (other than GFI business or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation that is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit not material to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to Parent or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entityits Subsidiaries;
(xiv) each Contract to which Parent or any material agreement between of its Subsidiaries is a party or among otherwise bound that contains a so-called “most favored nations” provision or similar provisions requiring Parent or its Affiliates of GFI;to offer to a Person any terms or conditions that are at least as favorable as those offered to one or more other Persons; and
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy each Contract involving a standstill or use similar obligation of Parent or any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effectits Subsidiaries.
(b) The agreements, commitments, arrangements Parent has heretofore made available to the Oceanbulk Companies true and plans, whether written or oral, listed or required to be listed in Section 2.19(a) complete copies of the GFI Disclosure Letter together with Parent Material Contracts as in effect as of the GFI License Agreements are referred to herein as the “GFI Contracts.” date hereof. Except as for breaches, violations or defaults which would not have a material impact on the respective businesses of GFI and the GFI SubsidiariesParent Material Adverse Effect, (i) neither GFI nor any GFI Subsidiary each of the Parent Material Contracts is andvalid, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may bebinding, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or the GFI Subsidiaries, as applicable, Parent and its Subsidiaries and, to the Knowledge of GFIParent, with respect to the other parties thereto, except to the extent that the enforceability thereof may be limited by the Equitable Exceptions and except for any Parent Material Contracts that have expired or been delivered terminated after the date hereof in accordance with its terms, and none of Parent, its Subsidiaries, nor to the Knowledge of Parent any other party to a Parent Material Contract has violated any provision of, or made available taken or failed to Parenttake any act which, with or without notice, lapse of time, or both, would constitute a breach or default under, or give rise to any right of cancellation or termination of or consent under, such Parent Material Contract, and (ii) none of Parent or its Subsidiaries has received written notice that it has breached, violated or defaulted under any Parent Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Oaktree Capital Management Lp), Merger Agreement (Star Bulk Carriers Corp.)
Contracts. (a) Except for Section 3.16 of the Company Disclosure Letter lists, as of the date of this Agreement, the CME Merger Agreement and each Contract (other than any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(aCompany Plan) of the GFI Disclosure Letter, neither GFI nor following types to which the Company or any GFI Subsidiary of its Subsidiaries is a party to or bound by, nor are by which any of their respective assets, businesses properties or operations party to, or bound or affected by, or receive benefits underassets is bound:
(i) any agreement relating Contract that would be required to Indebtednessbe filed by the 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 Current Report on Form 8-K;
(ii) any contracts under which GFI Contract that (A) limits the ability of the Company or any of the GFI its Subsidiaries has advanced to compete in any line of business or loaned with any Person or in any amounts geographic area, or (B) restricts the right of the Company and its Subsidiaries to sell to or purchase from any Person or to hire any Person, in excess each case, in a manner that is material to the business of $500,000the Company and its Subsidiaries, taken as a whole;
(iii) any Contract that grants the other party or any third Person “most favored nation” status or any type of special discount rights, in each case, that is material joint ventureto the business of the Company and its Subsidiaries, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating taken as a whole;
(iv) any Contract with respect to the formation, creation, operation, management or control of any partnership, strategic alliance or a joint venture;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or other similar agreement or arrangement;
(v) any agreement or series of related agreements, including any option agreement, Contract relating to Indebtedness (other than such Contracts solely between or among the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwiseCompany and its Subsidiaries) for aggregate consideration and having an outstanding principal amount in excess of $2,000,00025,000,000;
(vi) any material agreement with (A) any Person Contract involving the acquisition or disposition, directly or indirectly owning(by merger or otherwise), controlling of assets or holding with power to vote, 5% capital stock or other equity interests for aggregate consideration (in one or a series of transactions) under such Contract of $25,000,000 or more (other than acquisitions or dispositions of inventory in the outstanding voting securities ordinary course of GFI business consistent with past practice) and under which the Company or any GFI Subsidiary, (B) any Person 5% its Subsidiaries have a continuing obligation or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiaryliability;
(vii) any agreement Contract pursuant to which the Company or any of its Subsidiaries has continuing indemnification, guarantee, “earn-out” or other contingent payment obligations (including other than indemnification or guarantee obligations contained in commercial Contracts entered into by the Company or any exclusivity agreement) that purports to limit or restrict of its Subsidiaries in any material respect either the type ordinary course of business consistent with past practice), in which GFI or any GFI Subsidiary may engage or the manner or locations each case, that could result in which any payments in excess of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary$15,000,000;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements Contract not entered into in the ordinary course of businessbusiness between the Company or any of its Subsidiaries, under which on the one hand, and any Affiliate thereof other than any Subsidiary of the Company;
(Aix) any Person (other than GFI or Government Contract that is material to the Company and its Subsidiaries, taken as a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;whole; or
(x) any other agreement Contract with a Top Supplier or amendment thereto Top Customer that would be required to be filed as an exhibit to by its terms calls for aggregate payment or receipt by the Company and its Subsidiaries under such Contract of more than $15,000,000 over the remaining term of such Contract (including for any GFI SEC Document (as capital commitment, loan or expenditure). Each contract of the type described in Items 601(b)(4clauses (i) and 601(b)(10through (x) of Regulation S-K under the Securities Act) that has not been filed is referred to herein as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a “Company Material Adverse EffectContract.”
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary Each Company Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, and, to the Knowledge knowledge of GFIthe Company, no each other party isthereto, and is in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid full force and binding agreement of GFI or a GFI Subsidiary, as the case may be, effect and enforceable in accordance with its terms, except as where the failure to be valid, binding, enforceable and in full force and effect, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect on the Company and to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and reorganization or similar laws Laws affecting the enforcement of general applicability relating to or affecting creditors’ rights generally or by general equity principlesprinciples of equity; (ii) the Company and each of its Subsidiaries, and, to the knowledge of the Company, each other party thereto, has performed all obligations required to be performed by it under each Company Material Contract, except where any noncompliance, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect on the Company; and (iii) there is no default under any Company Material Contract by the Company or any of its Subsidiaries or, to the Knowledge knowledge of GFIthe Company, any other party thereto, and no event or condition has occurred which would result in a breach or violation ofthat constitutes, or a default underor, any GFI Contract (in each case, with or without after notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI would constitute, a default on the part of the Company or the GFI Subsidiaries, as applicable, andany of its Subsidiaries or, to the Knowledge knowledge of GFIthe Company, with respect any other party thereto under any such Company Material Contract, nor has the Company or any of its Subsidiaries received any notice of any such default, event or condition, except where any such default, event or condition, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect on the Company; provided, however, that the foregoing is without limitation to the other parties thereto, and have been delivered or provisions of subsection (c) of this Section 3.16. The Company has made available to ParentParent true and complete copies of all Company Material Contracts, including all amendments thereto.
(c) Neither the Company nor any of its Subsidiaries has received any unresolved written notices seeking (i) to excuse a third party’s non-performance, or delay a third party’s performance, under existing Company Material Contracts due to interruptions caused by COVID-19 (through invocation of force majeure or similar provisions, or otherwise) or (ii) to modify in any material respect any Company Material Contract due to COVID-19.
Appears in 2 contracts
Sources: Merger Agreement (Evoqua Water Technologies Corp.), Agreement and Plan of Merger (Xylem Inc.)
Contracts. (a) Except for SECTION 2.19(a) OF THE DISCLOSURE SCHEDULE (with paragraph references corresponding to those set forth below) contains a true and complete list of each of the following Contracts or other arrangements (true and complete copies or, if none, reasonably complete and accurate written descriptions of which, together with all amendments and supplements thereto and all waivers of any terms thereof, have been delivered to Purchaser prior to the execution of this Agreement), to which the CME Merger Agreement and Company or any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) of the GFI Disclosure Letter, neither GFI nor any GFI Subsidiary is a party to or bound by, nor are by which any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits underAssets and Properties is bound:
(iA) any agreement all Contracts (excluding Benefit Plans) providing for a commitment of employment or consultation services for a specified or unspecified term or otherwise relating to Indebtedness;
(ii) any contracts under which GFI employment or any independent contracting or the termination of employment or independent contracting, the GFI Subsidiaries has advanced or loaned any name, position and rate of compensation of each Person any amounts in excess party to such a Contract and the expiration date of $500,000;
(iii) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(v) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, each such Contract; and (B) any Person 5% written or more unwritten representations, commitments, promises, communications or courses of conduct (excluding Benefit Plans and any such Contracts referred to in clause (A)) involving an obligation of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI Company or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict make payments in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreementyear, other than such agreements entered into with respect to salary or incentive compensation payments in the ordinary course of business, under which (A) to any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI employee exceeding $50,000 or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity group of employees exceeding $100,000 in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000aggregate;
(xii) all Contracts with any other agreement Person containing any provision or amendment thereto that would be required covenant prohibiting or limiting the ability of the Company or any Subsidiary to be filed engage in any business activity or compete with any Person or, except as an exhibit provided in SECTION 4.11, prohibiting or limiting the ability of any Person to compete with the Company or any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of DeliverySubsidiary;
(xiiii) all partnership, joint venture, shareholders' or other similar Contracts with any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights)Person;
(xiiiv) any agreement that involves expenditures or receipts all Contracts relating to Indebtedness of GFI the Company or any GFI Subsidiary in excess of $3,000,000 in 10,000 or to preferred stock issued by the aggregate per yearCompany or any Subsidiary;
(xiiiv) any all material agreement Contracts with any Governmental Entitydistributors, dealers, manufacturer's representatives, sales agencies or franchisees;
(xivvi) all Contracts relating to (A) the future disposition or acquisition of any Assets and Properties, other than dispositions or acquisitions in the ordinary course of business consistent with past practice, and (B) any material agreement merger or other business combination;
(vii) all Contracts between or among Affiliates the Company or any Subsidiary, on one part, and Love, any officer, director, Affiliate (other than the Company or any Subsidiary) or Associate of GFILove or any Associate of any such officer, director or Affiliate, on another part;
(xvviii) all collective bargaining or similar labor Contracts;
(ix) all Contracts that (A) limit or contain restrictions on the ability of the Company or any Lease for the GFI Leased Real PropertySubsidiary to declare or pay dividends on, and to make any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent distribution in respect of constitutes a Material Adverse Effector to issue or purchase, redeem or otherwise acquire its capital stock, to incur Indebtedness, to incur or suffer to exist any Lien, to purchase or sell any Assets and Properties, to change the lines of business in which it participates or engages or to engage in any Business Combination or (B) require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition; and
(x) all other Contracts (other than Benefit Plans, leases listed in SECTION 2.16(a) OF THE DISCLOSURE SCHEDULE and insurance policies listed in SECTION 2.21 OF THE DISCLOSURE SCHEDULE) that (A) involve the payment or potential payment, pursuant to the terms of any such Contract, by or to the Company or any Subsidiary of more than $10,000 annually and (B) cannot be terminated within thirty (30) days after giving notice of termination without resulting in any material cost or penalty to the Company or any Subsidiary.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or Each Contract required to be listed disclosed in Section SECTION 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have OF THE DISCLOSURE SCHEDULE is in full force and effect and constitutes a material impact on the respective businesses of GFI and the GFI Subsidiarieslegal, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may beagreement, enforceable in accordance with its terms, of each party thereto; and except as may be limited by applicable bankruptcydisclosed in SECTION 2.19(b) OF THE DISCLOSURE SCHEDULE neither the Company, insolvencyany Subsidiary nor, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFILove, no event has occurred which would result in a breach or violation ofany other party to such Contract is, or a has received notice that it is, in violation or breach of or default under, under any GFI such Contract (in each case, or with or without notice or lapse of time or both), and would be in violation or breach of or default under any such Contract) in any material respect.
(ivc) each GFI Except as disclosed in SECTION 2.19(c) OF THE DISCLOSURE SCHEDULE, neither the Company nor any Subsidiary is a party to or bound by any Contract (including all modifications and amendments thereto and waivers thereunder) is that has been or could reasonably be expected to be, individually or in full force and effect the aggregate with respect to GFI or the GFI Subsidiariesany other such Contracts, as applicable, and, materially adverse to the Knowledge Business or Condition of GFI, with respect to the other parties thereto, and have been delivered or made available to ParentCompany.
Appears in 2 contracts
Sources: Investment Agreement (PDT Inc /De/), Option to Purchase (PDT Inc /De/)
Contracts. (a) Except for this AgreementThere have been made available to Parent true, the CME Merger Agreement correct and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) complete copies of all of the GFI Disclosure Letter, neither GFI nor following contracts to which Company or any GFI Subsidiary of its Subsidiaries is a party to or bound by, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:
(i) any agreement relating to Indebtedness;
(ii) any contracts under which GFI or any of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess of $500,000;
(iii) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(v) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in is bound as of the date of this Agreement (collectively, the "MATERIAL CONTRACTS"): (i) contracts with any business director of the Company, material contracts (other than those terminable at will without penalty) with any current officer of the Company or could require any of its Subsidiaries and employment, severance or termination agreements with any executive officer of the disposition Company or any of any its Subsidiaries; (ii) contracts (A) for the sale (other than completed sales) of material assets or line of business of GFI the Company or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreementof its Subsidiaries, other than such agreements contracts entered into in the ordinary course of businessbusiness or (B) for the grant to any person of any preferential rights to purchase any of its assets; (iii) contracts which restrict the Company or any of its Subsidiaries from competing in any line of business or with any person in any geographical area, under other than those the performance or breach of which could not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect; and (iv) indentures, credit agreements, security agreements, mortgages, guarantees, promissory notes and other contracts relating to the borrowing of money, other than (A) any of the foregoing with respect to indebtedness to any Person (other of less than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities$5.0 million, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI intercompany loans or guarantees between the 22 Company and any GFI Subsidiary has directly of its Subsidiaries or indirectly guaranteed between any such Subsidiaries or provided an indemnity in respect of liabilitiesfor the benefit of, or guaranteeing or securing obligations or commitments of any other Person (other than GFI of, the Company or a GFI SubsidiarySubsidiary of the Company and (C) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor security agreements covering personal property that are not individually or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes Company and its Subsidiaries, taken as a Material Adverse Effectwhole.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed Except as specified in Section 2.19(a) 3.14 of the GFI Company Disclosure Letter together with Letter, all of the GFI License Agreements Material Contracts are referred to herein as in full force and effect and are the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiarieslegal, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement obligations of GFI or a GFI Subsidiary, as the case may beCompany and/or its Subsidiaries, enforceable against them in accordance with its their respective terms, except as may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer moratorium and similar laws of general applicability relating to or affecting creditors’ ' rights or by and remedies generally and subject, as to enforceability, to general principles of equity principles, (iii) to the Knowledge regardless of GFI, no event has occurred which would result whether enforcement is sought in a breach proceeding at law or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or bothequity), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is except where the failure of such Material Contracts to be in full force and effect with or to be legal, valid, binding or enforceable against the Company and/or its Subsidiaries has not had and could not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as specified in Section 3.14 of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries is in breach or default in any material respect to GFI or the GFI Subsidiaries, as applicable, andunder any Material Contract nor, to the Knowledge of GFIthe Company, with respect is any other party to any Material Contract in breach or default thereunder in any material respect, except for such breaches or defaults that have not had and could not, individually or in the other parties theretoaggregate, and reasonably be expected to have been delivered or made available to Parenta Company Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Federated Department Stores Inc /De/), Merger Agreement (Fingerhut Companies Inc)
Contracts. (a) Except for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set Set forth in Section 2.19(a) Sections 2.13, 2.14, 2.15 and 2.16 of the GFI Company Disclosure Letter, neither GFI nor Letter are the following contracts to which the Company or any GFI Subsidiary of its subsidiaries is a party to or bound by, nor are by which any of their respective assetsthem is bound (collectively, businesses or operations party totogether with all contracts referred to in Sections 2.16, or bound or affected by2.20(c), or receive benefits under:
2.25 and 2.28, the (“Company Material Contracts”) (i) contracts between any agreement relating to Indebtedness;
current officer, director or stockholder of the Company or any Affiliate thereof on the one hand, and the Company or any subsidiary thereof on the other hand; (ii) any contracts under which GFI any employee of the Company or any of its subsidiaries is entitled to receive annual payments (including salary and bonuses) in excess of $100,000; (iii) contracts that restrict the GFI Subsidiaries has advanced Company or loaned any Person of its subsidiaries from competing in any amounts line of business or with any person in any geographical area; (iv) contracts entitling any person to change in control or other severance payments; (v) indentures, credit agreements, security agreements, mortgages, guarantees, promissory notes and other contracts relating to the borrowing of money, other than any such document or agreement between the Company and a subsidiary of the Company or among subsidiaries of the Company; (vi) contracts involving the sale or purchase of goods or service in excess of $500,000 in any year or $5,000,000 over the life of such Company Material Contract; joint venture, partnership and similar agreements; (viii) contracts with respect to capital expenditures or commitments for such expenditures in excess of $500,000;
; (iiiix) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(v) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) contracts providing for aggregate consideration payments in excess of $2,000,000;
(vi) 500,000 from the United States Government or any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more prime contractor of the outstanding voting securities United States Government over the life of GFI such Company Material Contract; and (x) all other agreements, contracts or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements instruments entered into in outside of the ordinary course of business, under business or which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior are material to the Date Company and its subsidiaries taken as a whole. The Company has delivered or made available to Purchaser true and correct copies of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in all such Company Material Contracts. All such Company Material Contracts are the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Propertylegal, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effect.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement obligations of GFI the Company and/or its subsidiaries enforceable against the Company or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or the GFI Subsidiaries, as applicablesuch subsidiary, and, to the Knowledge knowledge of GFIthe Company, with respect to against the other parties to the Company Material Contracts, in accordance with their respective terms, subject, in each case, to the Enforceability Exceptions. Neither the Company or any of its subsidiaries nor, to the knowledge of the Company, any other party thereto, and have been delivered is in material violation of or made available to Parentin material default in respect of, nor has there occurred an event or condition, that with the passage of time or giving of notice (or both), would constitute a material default under or permit the termination of, any such Company Material Contract.
Appears in 2 contracts
Sources: Acquisition Agreement (Parker Hannifin Corp), Acquisition Agreement (Parker Hannifin Corp)
Contracts. (a) Except for Section 3.16(a) of the Company Disclosure Letter sets forth a list of all Material Contracts as of the date of this Agreement. For purposes of this Agreement, “Material Contract” means any Contract to which the CME Merger Agreement and Company or any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) of the GFI Disclosure Letter, neither GFI nor any GFI Subsidiary its Subsidiaries is a party to or bound by, nor are by which the Company or any of its Subsidiaries or any of their respective assets, businesses properties or operations party to, or assets is bound or affected by, or receive benefits underthat:
(i) any agreement relating is or would be required to Indebtednessbe 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;
(ii) any contracts under which GFI or any of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess of $500,000;
(iii) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating relates to the formation, creation, operationgovernance, management economics or control of any partnership, strategic alliance or joint venture, partnership or other similar arrangement, other than (x) with respect to any partnership that is wholly owned by the Company or any of its wholly owned Subsidiaries and (y) for the avoidance of doubt, marketing, licensing, manufacturing and distribution Contracts entered into in the ordinary course of business;
(iii) provides for indebtedness for borrowed money of the Company or any of its Subsidiaries having an outstanding or committed amount in excess of $10 million, other than (A) indebtedness solely between or among any of the Company and any of its wholly owned Subsidiaries or (B) letters of credit;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(v) any agreement or series of related agreements, including any option agreement, relating relates to the acquisition or disposition of any business business, assets or real property properties (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration under such Contract in excess of $2,000,00010 million (A) that was entered into after January 1, 2015 or (B) pursuant to which any earn-out, indemnification or deferred or contingent payment obligations remain outstanding that would reasonably be expected to involve payments by or to the Company or any of its Subsidiaries of more than $5 million after the date hereof (in each case, excluding for the avoidance of doubt, acquisitions or dispositions of supplies, inventory, merchandise or products in the ordinary course of business or of supplies, inventory, merchandise, products, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries);
(v) is a Contract (other than purchase orders under a master agreement) for the purchase of materials, supplies, goods, services, equipment or other assets pursuant to which the Company or any of its Subsidiaries would reasonably be expected to make payments of more than $10 million during any fiscal year;
(vi) any material agreement is a Contract (other than purchase orders under a master agreement) with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more a customer of the outstanding voting securities of GFI Company or any GFI Subsidiary, (B) any Person 5% or more of its Subsidiaries pursuant to which the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI Company or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities its Subsidiaries received aggregate net payments of GFI or any GFI Subsidiarymore than $10 million during the fiscal year ended December 31, 2016;
(vii) contains any agreement provision (including any exclusivity agreementA) that purports to limit or restrict limiting, in any material respect either respect, the type right of business in which GFI the Company or any GFI Subsidiary may engage or the manner or locations in which any of them may so its Subsidiaries to engage in any business or could require the disposition business, make use of any material assets Intellectual Property, compete with any Person, or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements entered into operate anywhere in the ordinary course of businessworld, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI granting any exclusivity right to any third party, or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity containing a “most favored nation” provision in respect of liabilities, obligations or commitments favor of any other Person (third party, in each case, other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto a Contract that would can be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effect.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact terminated on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditorsless than 90 days’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result notice without resulting in a breach or violation of, or a default any acceleration of any rights or obligations or the payment of any penalty under, such Contract, (y) distribution or customer Contracts entered into in the ordinary course of business granting exclusive rights to sell or distribute certain of the Company’s and its Subsidiaries’ products or containing “most favored nation” provisions with respect to certain of the Company’s and its Subsidiaries’ products or (z) any GFI provision in any license agreements for Intellectual Property limiting the Company’s and its Subsidiaries’ use of such Intellectual Property to specified fields of use or specified territories; or
(viii) is a (A) license or similar Contract with respect to (x) any ▇▇▇▇▇-▇▇▇▇▇▇ Act related litigation or (y) any products covered by an NDA and entered into since January 1, 2011, or (B) settlement, coexistence agreement, covenant not to ▇▇▇ or similar Contract with respect to any material Intellectual Property, in each case, to which the Company or any of its Subsidiaries is a party, beneficiary or otherwise bound (other than generally commercially available, “off the shelf” software programs or non-exclusive licenses granted by or to the Company or any of its Subsidiaries in the ordinary course of business which do not contain any material restriction or condition on the use or exploitation of any material Intellectual Property by the Company or any of its Subsidiaries).
(b) Except with respect to any Contract that has previously expired in accordance with its terms, been terminated, restated or without replaced, (a) each 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, except where the failure to be valid, binding or in full force and effect would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (b) the Company and each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, have performed all obligations required to be performed by it under each Material Contract, except where such nonperformance would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (c) neither the Company nor any of its Subsidiaries have received 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, except where such default would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (d) there are no events or conditions which constitute, or, after notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI will constitute a default on the part of the Company or the GFI any of its Subsidiaries, as applicable, and, or to the Knowledge of GFIthe Company, with respect any counterparty under such Material Contract and (e) to the other parties theretoKnowledge of the Company, and the Company has not received any notice from any Person that such Person intends to terminate, or not renew, any Material Contract, except as would not, individually or in the aggregate, reasonably be expected to have been delivered or made available to Parenta Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Fresenius SE & Co. KGaA), Merger Agreement (Akorn Inc)
Contracts. (a) Except for Schedule 4.14(a) sets forth a true, complete and accurate list, as of the date of this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) of all of the GFI Disclosure Letterfollowing Contracts as amended to date which are currently in effect (collectively, neither GFI nor any GFI Subsidiary is a party to or bound by, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:“Material Contracts”):
(i) any agreement relating to Indebtedness;
(ii) any contracts under which GFI all Contracts that require annual payments or any of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess of $500,000;
(iii) any material joint venture, partnership, limited liability company, shareholderexpenses incurred by, or other similar agreements annual payments or arrangements relating to income to, the formation, creation, operation, management or control Company Group of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(v) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% US$200,000 or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements standard purchase and sale orders entered into in the ordinary course of businessbusiness consistent with past practices) including sales, under which advertising, agency, sales promotion, market research, marketing or similar contracts;
(ii) each Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least US$200,000, and which is not terminable for any Person reason or no reason upon reasonable notice without payment of any penalty, severance or other obligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of US$60,000 (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, COBRA obligations or commitments similar requirements under applicable local Law); or (C) providing for a payment or benefit in excess of GFI US$60,000 upon the consummation of the transactions contemplated by this Agreement or any GFI Subsidiary Ancillary Agreement or as a result of a change of control of the Company;
(Biii) GFI all Contracts creating a joint venture, strategic alliance, limited liability company or partnership arrangement to which a member of the Company Group is a party;
(iv) all Contracts relating to any GFI Subsidiary has directly acquisitions or indirectly guaranteed or provided an indemnity dispositions of assets of value in respect excess of liabilities, obligations or commitments of any other Person US$100,000 by the Company Group (other than GFI acquisitions or a GFI Subsidiarydispositions of inventory in the ordinary course of business consistent with past practices);
(v) all IP Contracts, separately identifying all such IP Contracts under which the Company is obligated to pay royalties thereunder and all such IP Contracts under which the Company is entitled to receive royalties thereunder;
(vi) all Contracts limiting the freedom of the Company Group to compete in each case any line of business or industry, with any Person or in any geographic area;
(vii) all Contracts providing for guarantees, indemnification arrangements and other hold harmless arrangements made or provided by the Company, including all ongoing agreements for repair, warranty, maintenance, service, indemnification or similar obligations, other than endorsements for Standard Contracts;
(viii) all Contracts with or pertaining to the purpose Company Group to which any Affiliate of collection the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or Contracts entered into on arms’ length terms by which any Company Group company provides goods or services to any other Company Group company;
(ix) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which the Company Group holds a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of US$200,000 per year;
(x) any all Contracts creating or otherwise relating to outstanding Indebtedness (other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4than intercompany Indebtedness) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Deliveryaggregate that are valued at US$250,000 or greater;
(xi) any agreement under which GFI all Contracts relating to the voting or any GFI Subsidiaries has granted any Person registration rights control of the equity interests of the Company Group or the election of directors of the Company Group (including demand and piggy-back registration rightsother than the organizational or constitutive documents of the Company Group);
(xii) any agreement that involves expenditures or receipts all Contracts not cancellable by the Company Group with no more than ninety (90) days’ notice if the effect of GFI or any GFI Subsidiary such cancellation would result in monetary penalty to the Company Group in excess of $3,000,000 in US$200,000 per the aggregate per yearterms 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 material agreement with any Governmental EntityAncillary Agreement and which constitute Material Contracts as defined by the other subsections of this Section 4.14(a);
(xiv) all Contracts under which any material agreement between of the benefits, compensation or among Affiliates payments (or the vesting thereof) will be increased or accelerated by the consummation of GFI;the transactions contemplated by this Agreement or any Ancillary Agreement, or the amount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) any Lease for the GFI Leased Real Property, and any all collective bargaining agreements or other agreement that relates in any way to the occupancy with a labor union, labor organization or use works council or other representative of any a group of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effectemployees.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, Each Material Contract is (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contracta valid and binding agreement, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or and (iii) enforceable by and against the GFI Subsidiaries, as applicable, Company Group and, to the Knowledge Company’s Knowledge, each counterparty that is party thereto, subject, in the case of GFIthis 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 default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract or granted any power of attorney with respect to thereto.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or Contracts establishing or evidencing any Indebtedness. The consummation and closing of the other parties thereto, and have been delivered transactions contemplated by this Agreement shall not cause or made available to Parentresult in an event of default under any instruments or Contracts establishing or evidencing any Indebtedness.
Appears in 2 contracts
Sources: Merger Agreement (Aerkomm Inc.), Merger Agreement (IX Acquisition Corp.)
Contracts. (a) Except for this Agreement, the CME Merger Agreement The Company has Made Available to AcquisitionCo a correct and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) complete copy of each of the GFI Disclosure Letter, neither GFI nor following written contracts to which the Company or any GFI Subsidiary of its Subsidiaries is a party to party, or bound by, nor are by which the Company or any of their respective assetsits Subsidiaries is bound, businesses or operations party to, or bound or affected by, or receive benefits underthat are in effect as of the date hereof:
(i) any agreement relating contract (or group of related contracts) involving the performance of services or the purchase of goods, materials or other assets by or to Indebtednessthe Company or any of its Subsidiaries, the performance of which will involve (A) annual payments to or from the Company or any of its Subsidiaries of $50,000 or more, or (B) aggregate payments (including termination penalties) to or from the Company or any of its Subsidiaries of $100,000 or more;
(ii) any contracts under which GFI contract concerning a partnership or any of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess of $500,000joint venture;
(iii) any material joint venturecontract (or group of related contracts) under which it has created, partnershipincurred, limited liability company, shareholderassumed, or other similar agreements guaranteed any indebtedness for borrowed money, or arrangements relating to the formationany capitalized lease obligation, creation, operation, management or control in excess of any partnership, strategic alliance or joint venture$100,000;
(iv) any material agreement relating contract concerning noncompetition that limits or otherwise restricts the Company or any of its Subsidiaries or that would, after the Effective Time, limit or restrict Parent, AcquisitionCo, the Surviving Corporation or any of their respective Affiliates, from engaging or competing in any line of business or in any geographic area, including any contract containing any “radius clause” applicable to markets in which the Company or any strategic alliance, joint development, joint marketing, partnership or similar arrangementof its Subsidiaries has operations;
(v) any agreement or series of related agreements, including any option agreement, contract relating to collective bargaining or employee association;
(vi) any contract for the employment of any individual on a full-time, part-time, consulting, or other basis who is an officer or director of the Company or any of its Subsidiaries that provides for annual compensation in excess of $100,000;
(vii) any contract under which the consequences of a default or termination would reasonably be expected to have a Material Adverse Effect;
(viii) any contract providing for the sale or exchange of, or option to sell or exchange, any material Company Property, or for the purchase or exchange of, or option to purchase or exchange, any real estate;
(ix) any contract for the acquisition or disposition of any business disposition, directly or real property indirectly (whether by mergermerger or otherwise), sale of stock, sale of assets or otherwise) Equity Interests of another person for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning100,000, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, each case other than such agreements entered into in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any license, royalty or other agreement contract concerning Intellectual Property (other than shrink-wrap software and databases licensed to the Company or amendment thereto that would be required any of its Subsidiaries under nonexclusive software licenses granted to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation Send-K under the Securities Act) that has not been filed as an exhibit to or incorporated user customers by reference third parties in the GFI SEC Documents filed prior to ordinary course of business of such third parties’ businesses), such Company Disclosure Letter indicating, in the Date case of Delivery;any such license, whether the Company or any of its Subsidiaries is the licensee or licensor; and
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand each written amendment, supplement and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary modification in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use respect of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effectforegoing.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed Except as set forth in Section 2.19(a4.14(b) of the GFI Company Disclosure Letter together Letter, with respect to each such contract to which the GFI License Agreements are referred to herein Company or any of its Subsidiaries is a party, or by which the Company or any of its Subsidiaries is bound, of a type described in Section 4.14(a) and in effect as of the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, date hereof: (i) neither GFI nor any GFI Subsidiary the contract is andlegal, to the Knowledge of GFIvalid, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both)binding, and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or enforceable against the GFI Company and/or certain of its Subsidiaries, as applicable, and, to the Knowledge of GFICompany’s knowledge, with respect to the other parties party thereto, and have been delivered in full force and effect; (ii) except for any such contract that expires in accordance with its terms, the contract will continue to be legal, valid, binding and enforceable against the Surviving Corporation and/or certain of its Subsidiaries, as applicable, and, to the Company’s knowledge, the other party thereto, and in full force and effect on identical terms following the Effective Time; (iii) neither the Company nor any of its Subsidiaries, as applicable, is in material breach or made available default, and no event has occurred that with the passage of time or giving of notice would constitute a material breach or default by the Company or any of its Subsidiaries, or permit termination or acceleration by the other party, under the contract; and (iv) to Parentthe Company’s knowledge, no other party to the contract is in material breach or default, and no event has occurred that with the passage of time or giving of notice would constitute a material breach or default by such other party, or permit termination or acceleration by the Company or its Subsidiary, under the contract.
Appears in 2 contracts
Sources: Merger Agreement (Sl Industries Inc), Merger Agreement (Handy & Harman Ltd.)
Contracts. (a) Except for As of the date of this Agreement, each of the CME Merger Agreement and any agreements contemplated Company’s “material contracts” (as defined in Item 601(b)(10) of Regulation S-K promulgated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in SEC) (each, a “Filed Company Contract”) has been filed with the SEC.
(b) Section 2.19(a4.14(b) of the GFI Company Disclosure LetterSchedule sets forth, neither GFI nor as of the date of this Agreement, a true and complete list of the following types of Contracts to which the Company or any GFI Company Subsidiary is a party to or bound by, nor are any as of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits underthe date of this Agreement:
(i) each Contract that restricts in any agreement relating material respect the ability of the Company or any Company Subsidiaries to Indebtednesscompete in any material line of business or geographic area and that is material to the Company and the Company Subsidiaries, taken as a whole;
(ii) each Contract pursuant to which any contracts under which GFI amount of Indebtedness of the Company or any of the GFI Company Subsidiaries has advanced or loaned any Person any amounts in excess of $500,0002,000,000 is outstanding or may be incurred by its terms, other than any such Contract solely between or among the Company and the wholly owned Company Subsidiaries or between or among wholly owned Company Subsidiaries;
(iii) any each material joint venture, partnership, limited liability company, shareholder, joint venture or other similar agreements or arrangements Contract relating to the formation, creation, operation, management or control of any partnership, strategic alliance partnership or joint ventureventure or to the ownership of any equity interest in any entity or business enterprise other than the Company Subsidiaries or securities of a publicly-traded company held for investment by the Company or any Company Subsidiaries;
(iv) other than any material agreement relating Contracts filed as exhibits (including exhibits incorporated by reference) to any strategic allianceFiled Company SEC Documents), joint developmenteach material Contract between the Company or any of its Subsidiaries, joint marketingon the one hand, partnership and, on the other hand, any (A) present executive officer or similar arrangementdirector of either the Company or any of the Company Subsidiaries, (B) record or beneficial owner of more than 5% of the shares of Common Stock outstanding as of the date of such Contract, or (C) to the Knowledge of the Company, any Affiliate of any such executive officer, director or record or beneficial owner of more than 5% of the shares of Common Stock outstanding as of the date hereof (other than the Company or any of the Company Subsidiaries);
(v) any agreement or series of related agreements, including any option agreement, each Contract relating to the disposition or acquisition by the Company or disposition any of the Company Subsidiaries of any material business or real property (whether by merger, sale of stock, sale any material amount of assets outside the ordinary course of business, in each case, with material obligations remaining to be performed after the date of this Agreement;
(vi) other than Contracts for ordinary repair and maintenance, each Contract providing for the development or otherwiseconstruction of, or additions or expansions to, any real property, under which the Company or any of the Company Subsidiaries has, or expects to incur, an obligation in excess of $3,000,000 in the aggregate;
(vii) for aggregate consideration other than Contracts described in the foregoing Section 4.14(b)(vi), any Contract that obligates the Company or any of the Company Subsidiaries to make any loans, advances or capital contributions to, or investments in, any Person (other than the Company or any Company Subsidiary), in each case, in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement Contract that grants any right of first refusal, right of first offer or similar right with a non-solicitation respect to any securities, material assets, material rights or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI properties of the Company or any GFI Company Subsidiary;
(ix) any agreement, other than such agreements entered into in Contract (each a “Management Agreement”) whereby the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI Company or any GFI Company Subsidiary manages any material real property owned or (B) GFI partially owned by a third party and to which the Company or any GFI Company Subsidiary has directly is a party or indirectly guaranteed or provided an indemnity in respect by which any of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation them is less than $1,000,000;bound; and
(x) any other agreement Contract with a supplier of the Company or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document Company Subsidiary (as described in Items 601(b)(4) excluding insurance providers and 601(b)(10) providers of Regulation S-K under the Securities Actlegal services) that represented at least $600,000 in total spend by the Company and the Company Subsidiaries, on a consolidated basis, during the twelve (12)-month period ended April 30, 2019, other than purchase orders, sales orders and similar Contracts.
(c) The Company has not been filed as an exhibit made available to or incorporated by reference in the GFI SEC Documents filed Parent prior to the Date date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights this Agreement a complete and correct copy of each Material Contract (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Propertyall amendments, modifications, extensions, and any other agreement that relates renewals thereto and waivers thereunder) as in any way to effect on the occupancy or use date of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effect.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” this Agreement. Except as would not have a be material impact on to the respective businesses of GFI Company and the GFI Company Subsidiaries, taken as whole, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Material Contract is a valid valid, binding and binding agreement legally enforceable obligation of GFI the Company or a GFI Subsidiaryone of the Company Subsidiaries, as the case may be, enforceable and, to the Knowledge of the Company, of the other parties thereto, except, in accordance with its termseach case, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and reorganization or similar laws of general applicability relating to or Laws affecting creditors’ rights or generally and by general equity principlesprinciples of equity, (ii) each such Material Contract is in full force and effect and (iii) to none of the Knowledge Company or any of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract the Company Subsidiaries is (in each case, with or without notice or lapse of time time, or both), and (iv) each GFI in breach or default under any such Material Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or the GFI Subsidiaries, as applicable, and, to the Knowledge of GFIthe Company, no other party to any such Material Contract is (with or without notice or lapse of time, or both) in breach or default thereunder, except, in the case of clauses (i) or (ii), with respect to any Material Contract which expires by its terms (as in effect as of the other parties theretodate hereof) or which is terminated in accordance with the terms thereof by the Company in the ordinary course of business consistent with past practice. Except as would not be material to the Company and the Company Subsidiaries, and have been delivered taken as whole, the Company has not received, as of the date of this Agreement, any notice in writing from any Person that such Person intends to terminate, or made available to Parentnot renew, any Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Vail Resorts Inc), Merger Agreement (Peak Resorts Inc)
Contracts. (a) Except (i) for this Agreement, (ii) for the CME Merger Agreement Contracts filed as exhibits to the SEC Reports prior to the date hereof, (iii) for the Company Plans and any agreements contemplated by CME Merger Agreement Company Stock Plans or the transactions contemplated thereby and any contract (iv) as set forth in Section 2.19(a) 3.8 of the GFI Company Disclosure LetterSchedule, as of the date hereof, neither GFI the Company nor any GFI Subsidiary of its subsidiaries is a party to or bound by, nor are by any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits underContract that:
(i) contains covenants binding upon the Company or any agreement relating of its Affiliates that materially restrict the ability of the Company or any of its Affiliates to Indebtednesscompete in any business or in any geographic area that, in each case, are material to the Company and its subsidiaries taken as a whole as of the date of this Agreement, except for leases;
(ii) any contracts under which GFI is a material partnership, joint venture or any similar Contract that, in each case, is material to the Company and its subsidiaries taken as a whole as of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess date of $500,000this Agreement;
(iii) under which the Company or any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint ventureits subsidiaries is liable for indebtedness in excess of $50,000,000;
(iv) expressly limits or otherwise restricts the ability of the Company or any material agreement relating of its subsidiaries to any strategic alliance, joint development, joint marketing, partnership pay dividends or similar arrangementmake distributions to its shareholders (excluding restrictions applicable only upon a default or event of default);
(v) any agreement or series by its terms calls for aggregate payments by the Company and its subsidiaries under such Contract of related agreementsmore than $50,000,000 over the remaining term of such Contract (other than this Agreement, including any option agreementContracts subject to clause (iii) above, relating purchase orders for the purchase of inventory and/or equipment in the ordinary course of business and leases);
(vi) relates to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;50,000,000; and
(vii) any agreement by its terms calls for aggregate payments to the Company and its subsidiaries under such Contract of more than $50,000,000 over the remaining term of such Contract (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements entered into this Agreement or purchase orders for the purchase of inventory and/or equipment in the ordinary course of business, under which ). Each Contract (Ai) any Person set forth (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be set forth) in Section 3.8 of the Company Disclosure Schedule, (ii) filed as an exhibit to any GFI the SEC Document (Reports as described in Items 601(b)(4) and a "material contract" pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act, or (iii) that has not been filed disclosed by the Company on a Current Report on Form 8-K as an exhibit a "material contract" (excluding any Company Plan), is referred to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes herein as a "Company Material Adverse EffectContract".
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) Each of the GFI Disclosure Letter together with Company Material Contracts is a legal, valid and binding obligation of, and enforceable against, the GFI License Agreements are referred to herein as Company or the “GFI Contracts.” Except as would not have Company subsidiary that is a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is party thereto and, to the Knowledge knowledge of GFIthe Company, no each other party isthereto, and is in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid full force and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable effect in accordance with its terms, subject to the Bankruptcy and Equity Exception, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iiii) to the Knowledge extent that any Material Contract expires or terminates in accordance with its terms in the ordinary course of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, business consistent with or without notice or lapse of time or both)past practice, and (ivii) each GFI Contract (including all modifications for such failures to be legal, valid and amendments thereto and waivers thereunder) is binding or to be in full force and effect that do not have and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company.
(c) The Company or its subsidiary that is a party to a Company Material Contract is in compliance with respect to GFI all terms and requirements of each Company Material Contract, and no event has occurred that, with notice or the GFI Subsidiariespassage of time, as applicableor both, would constitute a breach or default by the Company or any of its subsidiaries under any such Company Material Contract, and, to the Knowledge knowledge of GFIthe Company, no other party to any Company Material Contract is in breach or default (nor has any event occurred which, with respect notice or the passage of time, or both, would constitute such a breach or default) under any Company Material Contract, except in each case where such violation, breach, default or event of default does not have and would not reasonably be expected to have, individually or in the other parties theretoaggregate, and have been delivered or made available to Parenta Material Adverse Effect on the Company.
Appears in 2 contracts
Sources: Agreement and Plan of Merger, Merger Agreement
Contracts. (a) Except for this Agreementthe contracts and agreements described in Schedule 4.11 of the Company Disclosure Schedule (collectively, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) of the GFI Disclosure Letter"COMPANY MATERIAL CONTRACTS"), neither GFI Company nor any GFI Subsidiary the Company Subsidiaries is a party to or bound by, nor are any by the following contracts (which for purposes of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:this Agreement shall be deemed Company Material Contracts):
(i) any agreement relating to Indebtednessdistribution or software manufacturer's representative contract that represents ten percent (10%) or more of Company's consolidated annual revenues;
(ii) any contract for the provision of software, outsourcing or consulting services or computer hardware, including contracts under which GFI or billed on time plus materials and fixed-price contracts involving in the case of any of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess of such contact more than $500,0003,000,000 per annum;
(iii) any material joint venturecontract related to the provision of services to early-stage entities in consideration for, partnershipamong other things, limited liability companyequity interests in such entities, shareholder, along with any subscription or other similar agreements with respect to investments in such entities and instruments or arrangements relating to the formationsecurities evidencing such equity interests, creation, operation, management including any warrants or control of any partnership, strategic alliance or joint ventureoptions;
(iv) any material agreement relating to hedging arrangements, including any strategic alliance, joint development, joint marketing, partnership puts or similar arrangementcall options;
(v) any trust indenture, mortgage, promissory note, loan agreement or series other contract for the borrowing of related agreementsmoney, including any option agreementcurrency exchange, commodities or other hedging arrangement or any leasing transaction of the type required to be capitalized in accordance with US GAAP;
(vi) any contract for capital expenditures in excess of $3,000,000 in the aggregate;
(vii) any contract limiting in any material respect the freedom of the Company or any Company Subsidiary to engage in any line of business or to compete with any other Person;
(viii) any contract pursuant to which the Company or any Company Subsidiary is a lessor of any machinery, equipment, motor vehicles, office furniture, fixtures or other personal property involving in the case of any such contract more than $3,000,000 in any calendar year;
(ix) any contract with any Person (other than the Company or any Company Subsidiary) with whom the Company or any Company Subsidiary does not deal at arm's length within the meaning of the Code;
(x) any agreement of guarantee, support, indemnification, assumption or endorsement of, or any similar commitment with respect to, the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of any other Person; or
(xi) any agreement relating to the acquisition or disposition of any a business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements 1,000,000 entered into in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effectlast three years.
(b) The agreements, commitments, arrangements Company and plans, whether written or oral, listed or each Company Subsidiary has performed all of the material obligations required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred performed by it and is entitled to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI all benefits under, and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFICompany, no other party is, in breach or violation of, or is not alleged to be in default under, in respect of any GFI Company Material Contract, (ii) each GFI Contract is a valid and binding agreement . Each of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) Company Material Contracts is in full force and effect effect, unamended, and there exists no default or event of default or event, occurrence, condition or act, with respect to GFI Company or the GFI Subsidiaries, as applicable, and, any Company Subsidiary or to the Knowledge of GFI, Company with respect to the other parties theretocontracting party, which, with the giving of notice, the lapse of the time or the happening of any other event or conditions, would become a default or event of default under any Company Material Contract. True, correct and complete copies of all Company Material Contracts have been delivered or made available to Parent.
Appears in 2 contracts
Sources: Merger Agreement (Sapiens International Corp N V), Merger Agreement (Ness Technologies Inc)
Contracts. (a) Except for Section 4.11(a) of the Amneal Disclosure Letter sets forth a true and complete list as of the date of this Agreement, and Amneal has, prior to the CME Merger Agreement date of this Agreement, made available to Impax true and any agreements contemplated by CME Merger Agreement complete copies (including all material amendments, modifications, extensions, renewals or the transactions contemplated thereby and any contract set forth in Section 2.19(aguaranties) of the GFI following, other than any Amneal Plans (all such Contracts set forth on Section 4.11(a) of the Amneal Disclosure Letter, neither GFI nor any GFI Subsidiary is a party or which are required to or bound bybe so disclosed, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:“Amneal Material Contracts”):
(i) all Contracts of Amneal or any agreement relating of its Subsidiaries involving payments by or to IndebtednessAmneal or any of its Subsidiaries of more than $2,500,000 on an annual basis;
(ii) any contracts under which GFI all Contracts with third party manufacturers and suppliers for the manufacture and supply of products providing for minimum order quantities, minimum purchase requirements or any of the GFI Subsidiaries has advanced exclusive supply, manufacturing or loaned any Person any amounts in excess of purchase requirements with a total annual payment or financial commitment exceeding $500,0002,500,000;
(iii) all Contracts having a remaining term of three (3) years or more as of the date hereof wherein Amneal or any material joint venture, partnership, limited liability company, shareholder, of its Subsidiaries is obligated to manufacture or other similar agreements supply products to any third party with a total annual payment or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venturefinancial commitment exceeding $2,500,000;
(iv) all Contracts to which Amneal or any material agreement relating of its Subsidiaries is a party, or by which Amneal, any of its Subsidiaries is bound, that contain any covenant materially limiting or prohibiting the right of Amneal or any of its Subsidiaries (A) to engage in any strategic allianceline of business or conduct business in any geographic area, joint development(B) to distribute or offer any products or services or (C) to compete with any other person in any line of business or in any geographic area or levying a fine, joint marketingcharge or other payment for doing any of the foregoing, partnership in each case other than (x) non-compete or similar arrangementnon-solicitation Contracts with non-executive employees of Amneal or any of its Subsidiaries or (y) confidentiality agreements including non-solicitation, “no raid” or no-hire provisions;
(v) all Contracts of Amneal or any agreement or series of related agreements, including its Subsidiaries with any option agreement, relating to the acquisition or disposition Affiliate of Amneal (other than any business or real property (whether by merger, sale of stock, sale of assets or otherwiseits Subsidiaries) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI whereby Amneal or any GFI Subsidiary, of its Subsidiaries agrees to indemnify such Affiliate; or (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI the amount involved exceeds $500,000 on an annual basis, except for Contracts in respect of employment or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements consulting services entered into in the ordinary course of business;
(vi) all Contracts of Amneal or any of its Subsidiaries granting or obtaining any license to Intellectual Property involving payments of more than $1,000,000 in any calendar year;
(vii) all Contracts of Amneal or any of its Subsidiaries involving payments to a single vendor by or to Amneal or any of its Subsidiaries of more than $2,500,000 on an annual basis that require consent of or notice to a third party in the event of or with respect to the Transactions or the Ancillary Transactions, including in order to avoid a breach or termination of, or loss of benefit under, any such Contract;
(viii) all joint venture, partnership or other similar agreements involving co-investment with a third party to which Amneal or any of its Subsidiaries is a party;
(ix) all Contracts with any Governmental Authority or any Healthcare Regulatory Authority under which (A) any Person (other than GFI Amneal provides products or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity services involving aggregate consideration in respect excess of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,0002,500,000;
(x) settlement agreements with, or agreements entered into in connection with settlement agreements with, Governmental Authorities or any other agreement Healthcare Regulatory Authority that have existing or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Deliverycontingent material performance obligations;
(xi) all Contracts pursuant to which any agreement under which GFI Indebtedness of Amneal or any GFI of its Subsidiaries has granted any Person registration rights is outstanding or may be incurred (including demand and piggy-back registration rightsexcept for Contracts relating to Indebtedness (A) the aggregate principal amount of which does not exceed $5,000,000 or (B) solely among Amneal and/or its Subsidiaries);
(xii) any agreement that involves expenditures or receipts all Contracts of GFI Amneal or any GFI Subsidiary of its Subsidiaries which grant to any third party any exclusive rights, right of first refusal, right of first offer or similar right or ownership interest, in excess each case, with respect to any material Intellectual Property, drug master files, dossiers, regulatory filings or approvals with any Healthcare Regulatory Authority or other material assets, rights or properties of $3,000,000 in the aggregate per yearAmneal or any of its Subsidiaries;
(xiii) all Contracts relating to the voting or registration of any material agreement securities or providing Amneal or any of its Subsidiaries with any Governmental Entityright of first refusal with respect to, or right to repurchase or redeem, any assets or securities;
(xiv) all Contracts of Amneal or any of its Subsidiaries that relate to an acquisition, divestiture, merger or similar transaction that contain material agreement between representations, covenants, indemnities or among Affiliates other obligations (including material payment, indemnification or other contingent obligations) or any “earn-out” obligations of GFIAmneal or any of its Subsidiaries, that are in effect (other than any indemnification provisions which relate to representations and warranties in respect of organization, power and authority, due authorization, capitalization, non-contravention, Taxes, brokers fees or other similar representations and warranties which are contained in the applicable acquisition agreement);
(xv) all Contracts of Amneal or any Lease for the GFI Leased Real Property, and any other agreement that relates in any way of its Subsidiaries relating to the occupancy or use settlement of any Litigation Proceeding that provide for any continuing material obligations on the part of the GFI Leased Real Property; orAmneal or any of its Subsidiaries;
(xvi) all Contracts obligating Amneal or any agreement of its Subsidiaries to purchase or otherwise obtain any material product or service exclusively from any person or sell any material product or service exclusively to any person;
(xvii) all Contracts relating to a material research and development collaboration or any joint development, in each case, for any products currently marketed by Amneal or any of its Subsidiaries;
(xviii) all Contracts that are collective bargaining agreements and all Contracts with any trade union, works council or other employee representative or other labor organization;
(xix) all Contracts of Amneal or any of its Subsidiaries that prohibit, limit or restrict the termination payment of dividends or breach of which or the failure to obtain consent distributions in respect of constitutes the capital stock of Amneal or any of its Subsidiaries or otherwise, prohibit, limit or restrict the pledging of capital stock of Amneal or any of its Subsidiaries or prohibit, limit or restrict the issuance of guarantees by Amneal or any of its Subsidiaries; and
(xx) Contracts that obligate Amneal or any of its Subsidiaries to make any capital contribution or other investment (including pursuant to any joint venture) in a Material Adverse Effectperson in excess of $1,000,000 on an annual basis. For purposes of this Section 4.11(a), amounts calculated on an “annual basis” or similar terms reflect annualized expenses or payments based on payments made during the period from (A)(1) January 1, 2016 through December 31, 2016 or (2) January 1, 2017 through June 30, 2017 and (B) accruals for the applicable calendar year.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor none of Amneal or any GFI Subsidiary is andof its Subsidiaries (A) is, to the Knowledge of GFI, no or has received written notice that any other party to any Amneal Material Contract is, in violation or breach of or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both)) under or (B) has waived or failed to enforce any rights or benefits under any Amneal Material Contract to which it is a party or any of its properties or other assets is subject, (ii) there has occurred no event giving to others any right of termination, amendment or cancellation of (with or without notice or lapse of time or both) any such Amneal Material Contract and (iviii) each GFI such Amneal Material Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI and is a legal, valid and binding agreement of, and enforceable against, Amneal or the GFI Subsidiaries, as applicableits Subsidiary, and, to the Knowledge of GFIAmneal, each other party thereto, except for violations, breaches, defaults, waivers or failures to enforce rights or benefits, or failures to be in full force and effect or to be legal, valid, binding or enforceable, covered by clauses (i), (ii) or (iii) above that have not had and would not reasonably be expected to have, individually or in the aggregate, an Amneal Material Adverse Effect. No party to any of the Contracts set forth on Section 4.11(a) of the Amneal Disclosure Letter has provided written notice exercising any termination rights with respect to the other parties thereto, and have been delivered or made available to Parent.
Appears in 2 contracts
Sources: Business Combination Agreement (Atlas Holdings, Inc.), Business Combination Agreement (Impax Laboratories Inc)
Contracts. (a) Except for this Agreementthe contracts and agreements described in Schedule 5.11 of the Parent Disclosure Schedule (collectively, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) of the GFI Disclosure Letter"PARENT MATERIAL CONTRACTS"), neither GFI Parent nor any GFI Subsidiary the Parent Subsidiaries is a party to or bound by, nor are any by the following contracts (which for purposes of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:this Agreement shall be deemed Parent Material Contracts):
(i) any agreement relating to Indebtednessdistribution or software manufacturer's representative contract that represents ten percent (10%) or more of Parent's combined annual revenues;
(ii) any contract for the provision of software, outsourcing or consulting services or computer hardware, including contracts under which GFI or billed on time plus materials and fixed-price contracts involving in the case of any of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess of such contact more than $500,0003,000,000 per annum;
(iii) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating contract related to the formationprovision of services to early-stage entities in consideration for, creationamong other things, operationequity interests in such entities, management along with any subscription or control of agreements with respect to investments in such entities and instruments or securities evidencing such equity interests, including any partnership, strategic alliance warrants or joint ventureoptions;
(iv) any material agreement relating to hedging arrangements, including any strategic alliance, joint development, joint marketing, partnership puts or similar arrangementcall options;
(v) any trust indenture, mortgage, promissory note, loan agreement or series other contract for the borrowing of related agreementsmoney, including any option agreementcurrency exchange, commodities or other hedging arrangement or any leasing transaction of the type required to be capitalized in accordance with US GAAP;
(vi) any contract for capital expenditures in excess of $3,000,000 in the aggregate;
(vii) any contract limiting in any material respects the freedom of the Parent or any Parent Subsidiary to engage in any line of business or to compete with any other Person;
(viii) any contract pursuant to which the Parent or any Parent Subsidiary is a lessor of any machinery, equipment, motor vehicles, office furniture, fixtures or other personal property involving in the case of any such contract more than $3,000,000 in any calendar year;
(ix) any contract with any Person (other than the Parent or any Parent Subsidiary) with whom the Parent or any Parent Subsidiary does not deal at arm's length within the meaning of the Code;
(x) any agreement of guarantee, support, indemnification, assumption or endorsement of, or any similar commitment with respect to, the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of any other Person; or
(xi) any agreement relating to the acquisition or disposition of any a business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements 1,000,000 entered into in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effectlast three years.
(b) The agreements, commitments, arrangements Parent and plans, whether written or oral, listed or each Parent Subsidiary has performed all of the material obligations required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred performed by it and is entitled to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI all benefits under, and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFIParent, no other party is, in breach or violation of, or is not alleged to be in default under, in respect of any GFI Parent Material Contract, (ii) each GFI Contract is a valid and binding agreement . Each of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) Parent Material Contracts is in full force and effect effect, unamended, and there exists no default or event of default or event, occurrence, condition or act, with respect to GFI Parent or the GFI Subsidiaries, as applicable, and, any Parent Subsidiary or to the Knowledge of GFI, Parent with respect to the other parties theretocontracting party, which, with the giving of notice, the lapse of the time or the happening of any other event or conditions, would become a default or event of default under any Parent Material Contract. True, correct and complete copies of all Parent Material Contracts have been delivered or made available to ParentCompany.
Appears in 2 contracts
Sources: Merger Agreement (Sapiens International Corp N V), Merger Agreement (Ness Technologies Inc)
Contracts. (a) Except for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a2.18(a) of the GFI Disclosure LetterSchedule (with paragraph references corresponding to those set forth below) contains a true and complete list of each of the following Contracts or other arrangements (true and complete copies of which, neither GFI nor or, if none, reasonably complete and accurate written descriptions of which, together with all amendments and supplements thereto and all waivers of any GFI Subsidiary terms thereof, have been delivered to Purchaser prior to the execution of this Agreement) currently in effect, to which the Company is a party to or bound by, nor are by which any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits underits Assets and Properties is bound:
(iA) any agreement all Contracts (excluding Benefit Plans) providing for a commitment of employment or consultation services for a specified or unspecified term or otherwise relating to Indebtedness;
(ii) any contracts under which GFI employment or any the termination of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess of $500,000;
(iii) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control employment of any partnershipEmployee, strategic alliance or joint venture;
(iv) any material agreement relating to any strategic alliancethe name, joint development, joint marketing, partnership or similar arrangement;
(v) any agreement or series position and rate of related agreements, including any option agreement, relating to compensation of each Employee and the acquisition or disposition expiration date of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, each such Contract; and (B) any Person 5% written representations, commitments, promises or more communications (excluding Benefit Plans and any such Contracts referred to in clause (A)) involving an obligation of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power Company to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict make payments in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreementyear, other than such agreements entered into with respect to salary or incentive compensation payments in the ordinary course of business, under which to any Employee or former employee; (ii) all Contracts with any Person containing any provision or covenant prohibiting or limiting the ability of the Company to engage in any business activity or compete with any Person or prohibiting or limiting the ability of any Person to compete with the Company; (iii) all partnership, joint venture, shareholders’ or other similar Contracts with any Person including, without limitation, the partnership agreement of the Company; (iv) all Contracts relating to Indebtedness of the Company (in the aggregate in excess of $10,000); (v) all Contracts with distributors, dealers, manufacturer’s representatives, sales agencies or franchisees; (vi) all Contracts relating to (A) the future disposition or acquisition of any Person (Assets and Properties other than GFI dispositions or a GFI Subsidiaryacquisitions in the ordinary course of business consistent with past practice and (B) has directly any merger or indirectly guaranteed business combination; (vii) all Contracts between the Company, on the one hand, and Sellers or provided an indemnity any Affiliate of Sellers, on the other hand; (viii) all collective bargaining or similar labor Contracts; (ix) all Contracts that (A) limit or contain restrictions on the ability of the Company to declare or make distributions on, in respect of or to issue or purchase, redeem or otherwise acquire its partnership interests, or incur Indebtedness, to incur or suffer to exist any liabilitiesLien, obligations to purchase or commitments sell any Assets and Properties, to change the lines of GFI business in which it participates or engages or to engage in any GFI Subsidiary business combination or (B) GFI require the Company to maintain specified financial ratios or any GFI Subsidiary has directly levels of net worth or indirectly guaranteed or provided an indemnity in respect other indicia of liabilities, obligations or commitments of any financial condition; and (x) all other Person Contracts (other than GFI Benefit Plans, leases listed in Section 2.15(a) of the Disclosure Schedule and insurance policies listed in Section 2.20 of the Disclosure Schedule) that (A) involve the payment or a GFI Subsidiary) (in each case other than endorsements for potential payment, pursuant to the purpose terms of collection in a commercially reasonable manner consistent with industry practice)any such Contract, unless such guarantor by or indemnity obligation is less to the Company of more than $1,000,000;
10,000 annually and (xB) cannot be terminated within thirty (30) days after giving written notice of termination without resulting in any other agreement material cost or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior penalty to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse EffectCompany.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or Each Contract required to be listed disclosed in Section 2.19(a2.18(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have Schedule is in full force and effect and constitutes a material impact on the respective businesses of GFI and the GFI Subsidiarieslegal, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may beagreement, enforceable in accordance with its terms, of each party thereto, except as the same may be limited by applicable bankruptcy, insolvency, reorganizationmoratorium or similar rights whether in a proceeding at law or in equity, moratoriumand except as disclosed in Section 2.18(b) of the Disclosure Schedule, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principlesneither the Company nor, (iii) to the Knowledge of GFISellers, no event has occurred which would result in a breach or violation ofany other party to such Contract is, or a has received written notice that it is, in violation or breach of or default under, under any GFI such Contract (in each case, or with or without notice or lapse of time or both), and (ivwould be in violation or breach of or default under any such Contract) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or the GFI Subsidiaries, as applicable, and, to the Knowledge of GFI, with respect to the other parties thereto, and have been delivered or made available to Parentany material respect.
Appears in 2 contracts
Sources: Purchase Agreement (Viewpoint Corp), Purchase Agreement (Viewpoint Corp)
Contracts. (a) Except for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a3.8(a) of the GFI Company Disclosure Letter, neither GFI nor Schedule sets forth a list of each of the following contracts that are in force and effect as of the date of this Agreement to which the Company or any GFI Subsidiary of its Subsidiaries is a party to or bound by, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits underparty:
(i) any agreement relating to Indebtedness;
(ii) any contracts under which GFI or any of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess of $500,000;
(iii) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(v) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements entered into in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto contract that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation Sa Registration Statement on Form S-1 under the Securities Act or an Annual Report on Form 10-K under the Securities ActExchange Act (if such registration statement or report was filed by the Company with the SEC on the date of this Agreement);
(ii) each contract that has not been filed as restricts in any material respect the ability of the Company or any of its Subsidiaries to compete in any geographic area or line of business or to make use of any material IP Rights, develop market or distribute material products or services or compete with any Person;
(iii) each contract granting any exclusive rights or otherwise limiting the right of the Company or any of its Subsidiaries to sell, distribute or manufacture any material products or services or to purchase or otherwise obtain any material Software, components, parts, subassemblies or services;
(iv) each indemnification, employment, severance or change of control contract with any director or officer of the Company or its Subsidiaries or with any employee or consultant of the Company or its Subsidiaries providing for an exhibit annual base salary or annual consulting fee to such employee or consultant of $300,000 or more in fiscal year 2007 (other than offer letters with employees providing for at-will employment);
(v) each collective bargaining agreement, memorandum of understanding, settlement or other labor agreement with any union or labor organization applicable to the Company or its Subsidiaries;
(vi) each loan or credit agreement, mortgage, note or other contract evidencing indebtedness for money borrowed by the Company or any of its Subsidiaries from a third party lender and each contract pursuant to which any such indebtedness for borrowed money is guaranteed by the Company or any of its Subsidiaries;
(vii) each customer or supply contract (excluding purchase orders given or received in the ordinary course of business) under which the Company or any Subsidiary of the Company paid to or incorporated received from such customer or supplier in excess of $2,000,000 in fiscal year 2006;
(viii) each material contract to license to any third party to manufacture or reproduce any of the products, services or technology of the Company or any of its Subsidiaries or any material contract to sell or distribute any of the products, services or technology of the Company or any of its Subsidiaries;
(ix) each operating system software license or other contract with the top two providers (as measured by reference fees paid under such contracts) in fiscal 2006 pursuant to which the GFI SEC Documents filed prior Company licenses operating system software for use in its end-user products;
(x) each contract with the top two providers (as measured by fees paid under such contracts) in fiscal 2006 pursuant to which the Date of DeliveryCompany purchases microprocessors;
(xi) any agreement each contract with the top five third-party manufacturers (as measured by fees paid under such contracts) in fiscal 2006 pursuant to which GFI such Company products (or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights)subassemblies thereof) are manufactured;
(xii) each material contract containing any agreement that involves expenditures support, service or receipts maintenance obligation on the part of GFI the Company or any GFI Subsidiary of its Subsidiaries outside of the ordinary course of business consistent with past practice;
(xiii) each Real Property Lease;
(xiv) each lease or rental contract involving personal property (and not relating primarily to real property) pursuant to which the Company or any of its Subsidiaries is required to make rental payments in excess of $3,000,000 in the aggregate 250,000 per year;
(xiiixv) each contract relating to a joint venture, partnership or other strategic arrangement involving a sharing of material costs, profits or losses with another Person;
(xvi) each contract which would reasonably be expected to prohibit or delay the consummation of any material transaction contemplated in this Agreement;
(xvii) each material agreement that includes the grant to the Company or any of its Subsidiaries of a license or cross-license to material IP Rights owned by a third party and that is not a standard license agreement for a commercially available product;
(xviii) any material agreement with pursuant to which the Company or any Governmental Entityof its Subsidiaries have continuing obligations to jointly develop any material item of IP Right;
(xivxix) each material contract to provide source code to any third party for any material agreement between product or among Affiliates technology of GFIthe Company or its Subsidiaries;
(xvxx) each material contract for indemnification or any guaranty by the Company or any of its Subsidiaries other than any agreement of indemnification entered into in connection with the sale or license of the Company’s or any of its Subsidiaries’ products in the ordinary course of business;
(xxi) each contract relating to the disposition or acquisition by the Company or any of its Subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business, or pursuant to which the Company or any of its Subsidiaries has any material ownership interest or a right to any ownership interest, in any other Person or other business enterprise other than the Company’s Subsidiaries;
(xxii) each material contract which grant or benefit a right of first refusal or first offer or similar rights;
(xxiii) each agreement, contract or commitment pursuant to which the Company or any of its Subsidiaries is obligated to pay in the future in excess of $1,000,000 in any one-year period which is not terminable by the Company or its Subsidiaries without penalty in excess of $100,000 upon notice of 30 days or less, other than any agreement, contract or commitment to purchase inventory in the ordinary course of business consistent with past practice;
(xxiv) each material “single source” supply contract pursuant to which goods or materials are supplied to the Company or any Subsidiary of the Company from an exclusive source;
(xxv) each material contract which following the Offer or the Merger that would by its terms contain a material restriction on sales in any jurisdiction or which by its terms would impose any material financial obligation, in each case, on the Parent or its Affiliates (other than the Company and its Subsidiaries);
(xxvi) each material executory settlement agreement entered into within three years prior to the date of this Agreement; and
(xxvii) any Lease for the GFI Leased Real Propertycontract, and any other agreement that relates or group of contracts with a Person (or group of affiliated Persons), not described in any way to the occupancy or use of any of the GFI Leased Real Property; or
clauses (xvii) any agreement through (xxvi) above the termination or breach of which would be reasonably expected to have a material adverse effect on any material product or service offerings of the failure to obtain consent in respect of constitutes Company or its Subsidiaries or otherwise have a Company Material Adverse Effect.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be Each contract listed in Section 2.19(a3.8(a) of the GFI Company Disclosure Letter together with the GFI License Agreements are Schedule is referred to herein as a “Material Contract”. Each of the “GFI Contracts.” Except as would not have a material impact Material Contracts is valid and binding on the respective businesses Company or the Subsidiary of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary Company that is a party thereto and, to the Knowledge of GFIthe Company, no each other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both)thereto, and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI effect.
(c) There is no existing breach or default on the GFI Subsidiaries, as applicable, part of the Company or any of its Subsidiaries under any Material Contract except for breaches and defaults that do not constitute a Company Material Adverse Effect and, to the Knowledge of GFIthe Company, there is no existing breach or default on the part of any other Person under any Material Contract except for breaches and defaults that do not constitute a Company Material Adverse Effect. No event has occurred that, with respect to notice or lapse of time, would constitute a breach or default by the other parties theretoCompany or any of its Subsidiaries, or permit termination, material modification or acceleration, under any Material Contract, except for breaches and have been delivered or defaults that do not constitute a Company Material Adverse Effect.
(d) The Company has made available to ParentParent correct and complete copies of each Material Contract, together with all amendments and supplements thereto.
Appears in 2 contracts
Sources: Merger Agreement (Acer Inc), Merger Agreement (Gateway Inc)
Contracts. (a) Except for As of the date of this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract except as set forth in Section 2.19(a3.11(a) of the GFI Company Disclosure Letter, neither GFI the Company nor any GFI Subsidiary of its Subsidiaries is a party to or bound by, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits underby any:
(i) any agreement relating to Indebtedness“material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), whether or not filed by the Company with the SEC;
(ii) any contracts under employment or consulting Contract (in each case with respect to which GFI or any the Company has continuing obligations as of the GFI Subsidiaries has advanced date hereof) with any current or loaned any Person any amounts former (x) executive officer of the Company, (y) member of the Company Board, or (z) Company Employee providing for an annual base salary in excess of $500,00050,000;
(iii) Contract providing for indemnification or any guaranty by the Company or any Subsidiary thereof, in each case that is material to the Company and its Subsidiaries, taken as a whole, other than (x) any guaranty by the Company or a Subsidiary thereof of any of the obligations of (A) the Company or another wholly owned Subsidiary thereof or (B) any Subsidiary (other than a wholly owned Subsidiary) of the Company that was entered into in the ordinary course of business pursuant to or in connection with a customer Contract, or (y) any Contract providing for indemnification of customers or other Persons pursuant to Contracts entered into in the ordinary course of business;
(iv) Contract that purports to limit in any material joint respect the right of the Company or any of its Subsidiaries (or, at any time after the consummation of the Merger, Parent or any of its Subsidiaries) (x) to engage in any line of business, or (y) to compete with any Person or operate in any geographical location;
(v) Contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company or any of its Subsidiaries after the date of this Agreement of assets with a fair market value in excess of $50,000;
(vi) Contract that contains any provision that requires the purchase of all of the Company’s or any of its Subsidiaries’ requirements for a given product or service from a given Third Party, which product or service is material to the Company and its Subsidiaries, taken as a whole;
(vii) Contract that obligates the Company or any of its Subsidiaries to conduct business on an exclusive or preferential basis with any Third Party or upon consummation of the Merger will obligate Parent, the Surviving Corporation or any of their respective Subsidiaries to conduct business on an exclusive or preferential basis with any Third Party;
(viii) Contracts relating to Indebtedness for borrowed money or any guarantee of any Indebtedness for borrowed money (other than in respect of Indebtedness for borrowed money of a wholly owned Subsidiary of the Company) or loans or other advances to any Person in excess of $50,000;
(ix) Contracts where the Company or any of its Subsidiaries has received or expects to receive $50,000 or more in revenues pursuant to such agreements in the current fiscal year;
(x) Contracts with respect to the receipt of any goods and services involving a payment of $50,000 or more per annum;
(xi) Employee collective bargaining agreement or other Contract with any labor union;
(xii) Joint venture, partnershipalliance, partnership or limited liability company, shareholder, or other similar company agreements or arrangements similar Contracts relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating to any strategic , alliance, joint development, joint marketing, partnership or similar arrangement;
limited liability company that (vA) any agreement or series of related agreements, including any option agreement, relating is material to the acquisition Company, any of its Subsidiaries or disposition any of its Subsidiaries; (B) is material to any business investment in, or real property other commitment to, any Related Entity of the Company; or (whether by merger, sale of stock, sale of assets C) would reasonably be expected to require the Company or otherwise) for aggregate consideration its Subsidiaries to make expenditures in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% 50,000 or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements entered into in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per current fiscal year;
(xiii) any Contract which is not otherwise described in clauses (i)-(xii) above that is material agreement with any Governmental Entity;to the Company and its Subsidiaries, taken as a whole; or
(xiv) any Contracts material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy Company’s or use of any of its Subsidiaries' Intellectual Property owned or used by the GFI Leased Real Property; or
(xvi) Company or any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effectits Subsidiaries.
(b) The agreements, commitments, arrangements and plans, whether written All Contracts to which the Company or oral, listed any of its Subsidiaries is a party to or required to be listed in Section 2.19(a) bound by as of the GFI Disclosure Letter together with date of this Agreement that are of the GFI License Agreements type described in clause (a) above are referred to herein as the “GFI Company Material Contracts.” Except Except, in each case, as has not, and would not have reasonably be expected to have, individually or in the aggregate, a material impact on the respective businesses of GFI and the GFI SubsidiariesCompany Material Adverse Effect, (i) neither GFI nor any GFI all Company Material Contracts are valid and binding on the Company and/or the relevant Subsidiary of the Company that is a party thereto and, to the Knowledge of GFICompany’s Knowledge, no each other party isthereto, in breach or violation of, or in default under, any GFI Contractsubject to the Bankruptcy and Equity Exception, (ii) each GFI Contract is a valid all Company Material Contracts are in full force and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principleseffect, (iii) the Company and each of its Subsidiaries has performed all material obligations required to be performed by them under the Company Material Contracts to which they are parties, (iv) to the Company’s Knowledge, each other party to a Company Material Contract has performed all material obligations required to be performed by it under such Company Material Contract and (v) no party to any Company Material Contract has given the Company or any of its Subsidiaries written notice of its intention to cancel, terminate, change the scope of rights under or fail to renew any Company Material Contract and neither the Company nor any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to any Company Material Contract, has repudiated in writing any material provision thereof. Since January 1, 2013, neither the Company nor any of its Subsidiaries has Knowledge of, or has received written notice of, any violation of GFIor default under (or any condition which with the passage of time or the giving of notice would cause such a violation of or default under or permit termination, no event has occurred modification or acceleration under) any Company Material Contract or any other Contract to which would the Company or any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries or any of their respective material properties or assets is bound, except for violations or defaults that are not, individually or in the aggregate, reasonably likely to result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or the GFI Subsidiaries, as applicable, and, to the Knowledge of GFI, with respect to the other parties thereto, and have been delivered or made available to ParentCompany Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Medytox Solutions, Inc.), Merger Agreement (CollabRx, Inc.)
Contracts. (a) Except for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth as disclosed in Section 2.19(a) of the GFI Disclosure LetterSCHEDULE 4.20, neither GFI the Company nor any GFI Subsidiary its Subsidiaries is a party or subject to or bound by, nor are any of their respective assets, businesses the following written or operations party to, or bound or affected by, or receive benefits under:
oral contracts and agreements: (i) any agreement relating to Indebtedness;
union or collective bargaining agreements and any employment contracts; (ii) any contracts under which GFI with agents, consultants, advisors, salespersons, sales representatives, distributors or dealers; (iii) any contracts or commitments for capital expenditures or the acquisition of fixed assets providing for payments of $10,000 in the GFI Subsidiaries has advanced aggregate; (iv) any contracts relating to the rental or loaned any Person any amounts use of equipment, other personal property or fixtures involving payment of fixed or contingent annual rentals or sums in excess of $500,000;
(iii) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
10,000; (v) any agreement contracts relating in any way to indebtedness for borrowed money or series evidenced by a bond, debenture, note or other evidence of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property indebtedness (whether secured or unsecured) including but not limited to, indebtedness by mergerway of lease or installment purchase arrangement, sale of stockguarantee, sale of assets undertaking on which others rely in extending credit, or otherwise) for aggregate consideration in excess of $2,000,000;
, and any conditional sales contracts, chattel and purchase money mortgages and other security arrangements with respect to any equipment, other personal property or fixtures; (vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more contracts limiting the freedom of the outstanding voting securities Company or its Subsidiaries to engage in or to compete in any line of GFI business or with any GFI Subsidiary, (B) person or in any Person 5% area or more of the outstanding voting securities of which are directly to use or indirectly owned, controlled or held with power to vote by GFI or disclose any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
information in its possession; (vii) any agreement (including any exclusivity agreement) that purports to limit license or restrict in any material respect franchise agreements, either the type of business in which GFI as licensor or any GFI Subsidiary may engage licensee or the manner as franchisee or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
franchisor; (viii) any agreement with a non-solicitation contracts or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements entered into commitments not made in the ordinary course of business, under which ; (Aix) any Person (other than GFI joint venture or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
partnership contracts; (x) any other agreement contracts or amendment thereto that would be required to be filed as an exhibit to agreements for the purchase of any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to materials or incorporated by reference supplies or services in the GFI SEC Documents filed prior to the Date ordinary course of Delivery;
business and involving more than $10,000 in consideration in each such case; (xi) any agreement contracts or agreements under which GFI either the Company or any GFI its Subsidiaries has granted agreed to indemnify any Person registration rights (including demand person or entity with respect to, or to share, any liability of any person or entity; and piggy-back registration rights);
(xii) any agreement that involves expenditures other contract or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any commitment which is material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy Company or use its Subsidiaries or that, if terminated, could reasonably be expected to have, with the passage of any of the GFI Leased Real Property; or
(xvi) any agreement the termination time or breach of which or the failure to obtain consent in respect of constitutes otherwise, a Material Adverse Effect.
(b) . The agreements, commitments, arrangements contracts and plans, whether written or oral, listed or agreements which are required to be listed identified in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements SCHEDULE 4.20 are each hereinafter referred to herein individually as a "CONTRACT" and collectively as the “GFI Contracts"CONTRACTS.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or the GFI Subsidiaries, as applicable, and, to the Knowledge of GFI, with respect to the other parties thereto, and have been delivered or made available to Parent."
Appears in 2 contracts
Sources: Stock Purchase Agreement (Active Iq Technologies Inc), Stock Purchase Agreement (Meteor Industries Inc)
Contracts. (a) Except for The Company has made available to Parent true, correct and complete copies, as of the date of this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) of the GFI Disclosure Letter, neither GFI nor following Contracts to which the Company or any GFI Subsidiary of its Subsidiaries is a party:
(i) each “material contract” (as such term is defined in Item 10.C and in Instructions As To Exhibits of Form 20-F) to which the Company or any of its Subsidiaries is a party to or bound by, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:
(i) any agreement relating to Indebtednessbound;
(ii) any contracts under which GFI each Contract not contemplated by this Agreement that limits the ability of the Company or any of the GFI its Subsidiaries has advanced or loaned Affiliates to engage in or compete with any line of business in any location or with any Person in any amounts in excess of $500,000material manner;
(iii) any material joint venture, each Contract that creates a partnership, limited liability company, shareholder, joint venture or other similar agreements or arrangements relating any strategic alliance with respect to the formation, creation, operation, management Company or control any of any partnership, strategic alliance or joint ventureits Subsidiaries;
(iv) any material agreement relating to any strategic allianceeach employment, joint developmentconsulting, joint marketing, partnership services or similar arrangementContract with any employee or independent contractor of the Company or any of its Subsidiaries involving more than $500,000 of annual compensation;
(v) any agreement or series of related agreementseach indenture, including any option credit agreement, relating loan agreement, security agreement, guarantee, note, mortgage or other evidence of Indebtedness or Contract providing for Indebtedness individually in excess of $10,000,000;
(vi) each Contract entered into since January 1, 2024 that relates to the acquisition or disposition disposition, directly or indirectly, of any business or real property (whether by merger, amalgamation, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) or any material agreement with assets, including any vessel (other than (A) any Person directly this Agreement or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% acquisitions or more dispositions of supplies, inventory, merchandise or products (other than vessels) in the ordinary course of business or that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the outstanding voting securities Company or its Subsidiaries), including also any such Contract whenever entered into that includes provisions that remain in effect in respect of which are directly “earn-outs” or indirectly owned, controlled deferred or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiarycontingent consideration;
(vii) any agreement (including any exclusivity each ship-sales, memorandum of agreement) that purports to limit , bareboat charter, or restrict in any material respect either other vessel acquisition Contract entered into since January 1, 2024 for Newbuildings and secondhand vessels contracted for by the type of business in which GFI Company or any GFI Subsidiary may engage of its Subsidiaries (other than Company Owned Vessels) and other Contracts entered into since January 1, 2024 with respect to Newbuildings of the Company or the manner or locations in which any of them may so engage in any business or could require its Subsidiaries and the disposition of any material assets or line of business of GFI or any GFI Subsidiaryfinancing thereof, including performance guarantees, counter guarantees, refund guarantees, supervision agreements and plan verification services agreements;
(viii) each pool agreement, management agreement, crewing agreement or financial lease (including sale/leaseback or similar arrangements) with respect to any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI SubsidiaryCompany Vessel;
(ix) any agreement, Contract with a Third Party for the charter of any Company Vessel;
(x) each collective bargaining agreement or other Contract with a labor union to which the Company or any of its Subsidiaries is a party or otherwise bound;
(xi) each Contract that provides for indemnification by the Company or any of its Subsidiaries to any Person other than such agreements a Contract entered into in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI each Contract pursuant to which the Company or any GFI Subsidiary in excess of $3,000,000 its Subsidiaries spent or received, in the aggregate per yearaggregate, more than $2,500,000 during the twelve (12) months prior to the date hereof or could reasonably be expected to spend or receive, in the aggregate, more than $2,500,000 during the twelve (12) months immediately after the date hereof;
(xiii) each Contract to which the Company or any material agreement with of its Subsidiaries is a party or otherwise bound that contains a so-called “most favored nations” provision or similar provisions requiring the Company or its Affiliates to offer to a Person any Governmental Entity;terms or conditions that are at least as favorable as those offered to one or more other Persons; and
(xiv) any material agreement between each Contract involving a standstill or among Affiliates similar obligation of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy Company or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effectits Subsidiaries.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Except as set forth on Section 2.19(a4.15(b) of the GFI Company Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as or would not have reasonably be expected to be material to the Company and its Subsidiaries, taken as a material impact on the respective businesses of GFI and the GFI Subsidiarieswhole, (i) neither GFI nor any GFI Subsidiary each of the Material Contracts is andvalid, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may bebinding, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or the GFI Company and its Subsidiaries, as applicable, and, and to the Knowledge of GFIthe Company, with respect to the other parties thereto, except to the extent that the enforceability thereof may be limited by the Equitable Exceptions and except for any Material Contracts that have expired or been delivered terminated after the date hereof in accordance with its terms, and (ii) neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Material Contract, has violated any provision of, or made available taken or failed to Parenttake any act which, with or without notice, lapse of time, or both, would constitute a breach or default under, or give rise to any right of cancellation or termination of or consent under, such Material Contract, and neither the Company nor any of its Subsidiaries has received written notice that it has breached, violated or defaulted under any Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (CMB.TECH Nv), Merger Agreement (Golden Ocean Group LTD)
Contracts. (a) Except for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a4.15(a) of the GFI Disclosure LetterLetter sets forth, neither GFI nor as of the date hereof, a true and complete list of the following Contracts to which any GFI Subsidiary Group Company is a party to or bound by, nor are by which any Group Company or any of their respective assetsassets are bound (other than (x) any purchase order, businesses work order or operations party toquality agreement that, for each of the foregoing, does not modify any material term or condition of, or bound contain any material term or affected bycondition that is not contemplated by or contained in, a Contract disclosed in Section 4.15(a) of the Disclosure Letter or receive benefits under:(y) any Company Plan):
(i) each Contract pursuant to which the Group Companies, taken as a whole, may be entitled to receive or obligated to pay more than $500,000 in any agreement relating to Indebtednessfiscal year;
(ii) any contracts under which GFI or any of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess of $500,000[reserved];
(iii) each Contract that is material to the Business or operation of the Group Companies, taken as a whole, containing (A) any provision limiting the freedom of any Group Company to engage in any line of business or compete with any Person (other than any employee, customer or consultant non-solicitation covenants entered into in the ordinary course of business), (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision or (D) any agreement to purchase a minimum quantity of goods or services;
(iv) each Contract that is material joint ventureto the Business or operation of the Group Companies, partnershiptaken as a whole, limited liability companythat grants to the counterparty any rights of first refusal, shareholderfirst negotiation, first offer or similar right, and each Contract that limits or purports to limit the ability of any Group Company to own, operate, sell, transfer, or other similar agreements or arrangements relating to otherwise dispose of its material assets;
(v) each Contract that governs the formation, creation, operationgovernance, management economics or control of any partnership, strategic alliance or joint venture, legal partnership or other similar arrangement, other than with respect to any Contract solely between or among Group Companies;
(ivvi) any material agreement each Contract relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangementcapital expenditures and requiring payments after the date of this Agreement in excess of $150,000 pursuant to its express terms and not cancelable without penalty;
(vvii) any agreement or series of related agreements, including any option agreement, each Contract relating to the disposition or acquisition of assets for consideration in excess of $150,000, or disposition assets that are otherwise material to the Business or the Group Companies, taken as a whole, or of any business or real property ownership interest in any entity (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary);
(viii) each Contract pursuant to which any agreement Group Company has indemnification obligations, or purchase price adjustment, earnout or other contingent payment obligations, in each case in connection with a non-solicitation any merger or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI other business combination or any GFI Subsidiaryacquisition or disposition of a business or Person;
(ix) each Contract relating to any pending business acquisition by any Group Company;
(x) each Contract providing for the creation of any mortgages, loans or notes of any Group Company, each indenture, credit agreement, security agreement or other agreement or instrument providing for the creation of Indebtedness for borrowed money of any Group Company, any guaranty provided by any Group Company of any obligation for borrowed money or other guaranty provided by any Group Company and each Contract creating any material Liens, other than Contracts creating Liens of the type, nature and scope contemplated by clauses (ii), (iii), (iv), (v) or (vii) of the definition of Permitted Liens;
(xi) each Contract under which a Group Company, directly or indirectly, has made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than a Group Company), in any such case which, individually, is in excess of $150,000, other than (A) trade credit advanced in the ordinary course of business or (B) to directors, managers, officers or employees for business and travel expenses in the ordinary course of business;
(xii) each Company Real Estate Lease;
(xiii) each Contract with any Governmental Authority or any university, college, research institute or other educational or academic institution that provides for research and development activities involving the creation of any material Intellectual Property rights;
(xiv) (A) each license of Company In-Licensed IP (other than any non-exclusive licenses incidental to the primary purpose of commercial agreements, non-disclosure agreements entered into in the ordinary course of business, under which Off-the-shelf Software and licenses to Open Source Code) and (AB) each settlement, co-existence or other Contract that grants any third Person a license or right to use, or restricts any Group Company from filing, enforcing, licensing, using, registering, transferring, disposing of or otherwise exploiting, any Company Owned IP (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for non-exclusive licenses incidental to the primary purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) commercial agreements and 601(b)(10) of Regulation Snon-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference disclosure agreements entered into in the GFI SEC Documents filed prior to the Date ordinary course of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rightsbusiness);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) each Contract pursuant to which any Lease material research or development activities are conducted by any Group Company for a third party or by a third party for any Group Company;
(xvi) each Contract that is material to the Business or operations of Group Companies, taken as a whole, under which any Group Company has continuing milestone, royalty or similar contingent payment obligations, including upon the achievement of regulatory or commercial milestones or obligation to pay any royalty, dividend or similar payment based on the revenues or profits of any Group Company, in each case, excluding indemnification and performance guarantee obligations provided for in the ordinary course of business;
(xvii) each Contract that is not terminable at will with fewer than 60 days’ prior notice (with no penalty or payment) by any Group Company and which expressly provides for payment or receipt by any Group Company after the date of this Agreement of more than $500,000 in the aggregate;
(xviii) each collective bargaining agreement or other similar Contract with any labor organization, union, group or association covering any Business Employee;
(xix) each Contract (A) for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use employment of any Business Employee providing such Business Employee with target annual compensation or fees in excess of $350,000, (B) providing for the payment of any Cash or other compensation or benefits in connection with or upon the consummation of the GFI Leased Real PropertyTransactions to any Business Employee or otherwise payable by any Group Company, (C) restricting any Group Company’s ability to terminate the employment or services of any Business Employee at any time for any lawful reason or for no reason without penalty or (D) providing for severance or similar termination payments, retention or change in control payments, or for the acceleration of vesting or grant of any incentive equity or similar compensation to any Business Employee or otherwise payable by any Group Company;
(xx) each Contract with a Company Material Customer;
(xxi) each Contract with a Company Material Supplier;
(xxii) each “single-source” supply Contract, pursuant to which material goods or services are supplied to any Group Company from an exclusive source that cannot be replaced by one or more other sources on substantially similar terms and in a reasonably timely manner;
(xxiii) each Contract that is a settlement, conciliation or similar agreement with any Governmental Authority that imposes any material unpaid monetary or other material ongoing obligation upon any Group Company;
(xxiv) each Contract with (A) Seller or any Affiliate of Seller (other than any Group Company) or (B) any officer or director of Seller or its Affiliates (including the Group Companies) or any Affiliate thereof (other than a Group Company); or
(xvixxv) each commitment or agreement to enter into any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effect.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contractsforegoing.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or the GFI Subsidiaries, as applicable, and, to the Knowledge of GFI, with respect to the other parties thereto, and have been delivered or made available to Parent.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Standard Biotools Inc.), Stock Purchase Agreement (Illumina, Inc.)
Contracts. (a) Except for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a2.14(a) of the GFI Seller Disclosure LetterSchedule sets forth a true, neither GFI nor any GFI Subsidiary is a party to or bound bycorrect and complete list of the following Contracts of Seller in effect as of the date hereof (such Contracts, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:the "Material Contracts"):
(i) any agreement relating (or group of related agreements) for the (A) purchase, lease or transfer of any real or personal property, Products, materials, supplies or services to IndebtednessSeller of an amount or value in excess of $15,000 or (B) sale, lease or other transfer of any real or personal property, Products, materials, supplies or services by Seller;
(ii) any contracts under which GFI or any of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess of $500,000supply and/or sourcing agreement;
(iii) any material joint venture, agreement concerning a partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance joint development or joint ventureventure with any other person;
(iv) any material agreement mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to any strategic alliance, joint development, joint marketing, partnership the borrowing of money or similar arrangementextension of credit (including guarantees);
(v) any agreement concerning confidentiality or series of related agreements, including any option agreement, relating contract or commitment containing any covenant limiting the freedom of Seller to the acquisition or disposition engage in any line of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000to compete with any person;
(vi) any material agreement with (A) involving any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities stockholders of GFI Seller or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiarytheir affiliates;
(vii) any agreement (including any exclusivity agreement) that purports to limit profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or restrict in any material respect either other plan or arrangement for the type benefit of business in which GFI Seller's current or any GFI Subsidiary may engage former directors, officers, Employees or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiaryconsultants;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiarycollective bargaining agreement;
(ix) any Employment Agreement or consulting agreement, offer of employment, contract or commitment with an Employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other than such agreements entered into in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000organization;
(x) any other agreement under which Seller has advanced or amendment thereto that would be required to be filed as an exhibit loaned any amount to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to its directors, officers, or incorporated by reference Employees other than business travel advances in the GFI SEC Documents filed prior to the Date ordinary course of Deliverybusiness consistent with past practice;
(xi) any royalty agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand other agreement obligating payments by Seller in connection with the sale of Products or services by Seller, listing the parties thereto and piggy-back registration rights)the duration of and amount of such royalties or other payment;
(xii) any agreement that involves expenditures volume purchase and master purchase agreements (A) where Seller is the purchaser of an amount or receipts of GFI or any GFI Subsidiary value in excess of $3,000,000 in the aggregate per year15,000 or (B) where Seller is required, obligated or entitled to make sales to any person;
(xiii) any material agreement with any Governmental Entitymaintenance agreements of an amount or value in excess of $15,000;
(xiv) any material agreement between providing for indemnification obligations by Seller with respect to the sale of Products or among Affiliates services of GFIor otherwise related to the Business;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy fidelity or use of any of the GFI Leased Real Property; orsurety bond or completion bond;
(xvi) any agreement the termination requirements Contract relating to obligations to purchase all or breach substantially all of which any product as well as to supply all or substantially all of any Product;
(xvii) any agreement, Contract or commitment relating to capital expenditures or the failure acquisition by purchase or lease of fixed assets of an amount or value in excess of $15,000;
(xviii) any agreement that by its terms does not terminate prior to obtain consent one (1) year after the date of this Agreement;
(xix) any purchase order or Contract for the purchase of materials of an amount or value in respect excess of constitutes a Material Adverse Effect$1,500 individually or $3,000 in the aggregate;
(xx) any construction contracts of an amount or value in excess of $5,000;
(xxi) any distribution, joint marketing or research and development agreement; and
(xxii) any other agreement, Contract or commitment related to or used in the Business not listed in (i) through (xxi) above.
(b) The agreementsSeller has delivered to Buyer a true, commitments, arrangements correct and plans, whether complete copy of each written or oral, listed or required to be Contract listed in Section 2.19(a2.14(a) of the GFI Seller Disclosure Letter together with Schedule and each other written Transferred Agreement and a written summary setting forth the GFI License Agreements are terms and conditions of each oral agreement referred to herein as in Section 2.14(a) of the “GFI Contracts.” Except as would not have a material impact on Seller Disclosure Schedule and each other oral Transferred Agreement. Seller has in all respects (except in immaterial respects) performed, or is now performing, the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation obligations of, and has not breached, violated or in default defaulted under, or received notice that it has breached, violated or defaulted under, any GFI Contractof the terms or conditions of any Contract listed in Section 2.14(a) of the Seller Disclosure Schedule or any other Transferred Agreement, (ii) each GFI Contract and Seller is not aware of any event that would constitute such a valid and binding agreement breach, violation or default with the lapse of GFI or a GFI Subsidiarytime, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws giving of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI . Each Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect and, except as otherwise disclosed in Section 2.14(b) of the Seller Disclosure Schedule, is not subject to any default thereunder by any party obligated to Seller pursuant thereto. Each Contract is a valid and enforceable obligation against Seller and against the other party thereto in accordance with its terms. No third party has raised any claim, dispute or controversy with Seller with respect to GFI any of the Contracts, nor has Seller received written notice or the GFI Subsidiarieswarning of alleged nonperformance, as applicable, and, to the Knowledge of GFI, delay in delivery or other noncompliance by Seller with respect to its obligations under any such Contracts.
(c) Schedule 1.1(c) of the Seller Disclosure Schedule accurately lists all Transferred Agreements. The Transferred Agreements, together with any Contracts that are Excluded Assets, are all of the Contracts between any Seller and any third party related to, used in, or necessary for, the operation of the Business as currently conducted. Following the Closing Date, Buyer will be permitted to exercise all of the rights any Seller had under the Transferred Agreements without the payment of any additional amounts or consideration other parties theretothan ongoing fees, and royalties or payments which Seller would otherwise be required to pay had the transactions contemplated by this Agreement not occurred.
(d) There are no purchase orders for which advance payments have been delivered made by the purchasers prior to delivery by Seller of the related Products or services or for which advance payment has been made available to Parentand the related Products or services have not been provided.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Neomagic Corp), Asset Purchase Agreement (Neomagic Corp)
Contracts. (a) Except for as set forth in Schedule 5.14, as of the date of this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) none of the GFI Disclosure LetterCompanies is, and neither GFI the Selling Stockholders nor any GFI Subsidiary is of their Affiliates are, with respect to the Business, a party to or bound by, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:
(i) any agreement relating to Indebtednesscontract for the future purchase or sale of real property;
(ii) any contracts under contract for the purchase by such Company or the Business of services, supplies, components or equipment which GFI or any such Company reasonably anticipates will involve the annual payment of more than $500,000 after the GFI Subsidiaries has advanced or loaned any Person any amounts in excess of $500,000date hereof;
(iii) any material joint venture, partnership, limited liability company, shareholder, contract for the sale by such Company or other similar agreements or arrangements relating to the formation, creation, operation, management or control Business of any partnership, strategic alliance services or joint ventureproducts of the Companies’ businesses which such Company reasonably anticipates will involve the annual payment of more than $1,000,000 after the date hereof or any rebate arrangement related to such contract;
(iv) any material agreement relating to any strategic allianceloan agreements, joint developmentpromissory notes, joint marketingindentures, partnership bonds, security agreements, guarantees or similar arrangementobligations for borrowed money or other instruments involving indebtedness in an amount in excess of $250,000;
(v) any partnership, joint venture or other similar agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000arrangement;
(vi) any material agreement with (A) any Person directly or indirectly owningmanagement service, controlling or holding with power to voteconsulting, 5% or more of the outstanding voting securities of GFI financial advisory or any GFI Subsidiary, (B) other similar type of contract and any Person 5% contracts with any investment or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiarycommercial bank;
(vii) any agreement contract (including any exclusivity agreementletters of intent) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require involving the disposition or acquisition of any material assets or line of business of GFI properties, or any GFI Subsidiarymerger, consolidation or similar business combination transaction, whether or not enforceable;
(viii) any agreement contracts which contain restrictions with a non-solicitation or “most-favored-nations” pricing provision that purports respect to limit or restrict in any material respect GFI payment of dividends or any GFI Subsidiaryother distribution in respect of the capital stock or other equity interests;
(ix) any agreementcontract containing any covenant or provision prohibiting such Company or the Business from engaging in any line or type of business (except for such contracts which shall not apply to such Company upon Closing);
(x) any contract between such Company, on the one hand, and any Selling Stockholder (or any Affiliate thereof other than any Company) on the other hand;
(xi) outstanding agreements of guaranty, surety or indemnification, direct or indirect, by such Company, other than such indemnification agreements with respect to the purchase or sale of goods set forth in supplier or customer contracts entered into in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner business and consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);past practices; or
(xii) any agreement that involves expenditures contract under which such Company has made advances or receipts of GFI or loans to any GFI Subsidiary other Person in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between 10,000 individually, other than advances or among loans to Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way will be repaid prior to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse EffectClosing.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or the GFI Subsidiaries, as applicable, and, to the Knowledge of GFI, with respect to the other parties thereto, and have been delivered or made available to Parent.
Appears in 1 contract
Sources: Purchase Agreement (Owens Corning)
Contracts. (a) Except for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a3.16(a) of the GFI Company Disclosure Letter, neither GFI nor Letter lists all of the Material Contracts to which the Company or any GFI Subsidiary of its Subsidiaries is a party to or bound by, nor are by which any of their respective assets, businesses properties or operations party to, or assets is bound or affected by, or receive benefits underother than those Material Contracts already set forth in the Company SEC Documents publicly available prior to the date of this Agreement. All copies of Material Contracts made available to Parent are true and complete copies of such Contracts. “Material Contracts“ means:
(i) any agreement relating Contract that would be required to Indebtednessbe filed by the 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 Current Report on Form 8-K;
(ii) any contracts under which GFI Contract that limits the ability of the Company or any of its Subsidiaries (or, following the GFI Subsidiaries has advanced consummation of the transactions contemplated by this Agreement, would limit the ability of Parent or loaned any of its Subsidiaries, including the Surviving Corporation) to compete in any line of business or with any Person or in any amounts in excess geographic area, or that restricts the right of $500,000the Company and its Subsidiaries (or, following the consummation of the transactions contemplated by this Agreement, would limit the ability of Parent or any of its Subsidiaries, including the Surviving Corporation) to sell to or purchase from any Person or to hire any Person, or that grants the other party or any third Person “most favored nation” status or any similar type of favored discount rights;
(iii) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating Contract with respect to the formation, creation, operation, management or control of any a joint venture, partnership, strategic alliance limited liability or joint venture;other similar agreement or arrangement; or
(iv) any Contract with a customer that is material agreement to the business of the Company or the applicable Subsidiary that requires a consent to or otherwise contains a provision relating to any strategic alliancea “change of control,” or that would or would reasonably be expected to prevent, joint development, joint marketing, partnership delay or similar arrangement;
(v) any agreement or series of related agreements, including any option agreement, relating to impair the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more consummation of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote transactions contemplated by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements entered into in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effectthis Agreement.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Each Material Contract is a valid and binding agreement on the Company and any of GFI or its Subsidiaries to the extent such Subsidiary is a GFI Subsidiaryparty thereto, as applicable, and to the case may beknowledge of the Company, each other party thereto, and is in full force and effect and enforceable in accordance with its terms, except as that (i) such enforcement may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratoriummoratorium or other similar Laws, fraudulent transfer and similar laws of general applicability now or hereafter in effect, relating to or affecting creditors’ rights or by general equity principles, generally and (iiiii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the Knowledge discretion of GFIthe court before which any proceeding therefor may be brought and except as would not individually or in the aggregate have a Material Adverse Effect. To the knowledge of the Company, there is no event has occurred which would result in a breach default, under any Material Contract by the Company or violation ofany of its Subsidiaries or, or a default underto its knowledge, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or the GFI Subsidiaries, as applicable, and, to the Knowledge of GFI, with respect to the other parties party thereto, and except for such defaults that individually or in the aggregate would not be reasonably expected to have been delivered or a Material Adverse Effect. The Company has made available to ParentParent true and complete copies of all Material Contracts, including any amendments thereto. The Company makes no representation or warranty concerning the effect of the transactions contemplated hereby on any “change in control” or similar clause contained in any Material Contract.
Appears in 1 contract
Contracts. (a) Except for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) 3.15 of the GFI Company Disclosure Letter, neither GFI nor Letter lists each of the following written contracts and agreements (other than any GFI Subsidiary lease of Company Leased Real Property) to which the Company or any of its Subsidiaries is a party to that is in effect as of the date of this Agreement (each such Contract or bound byarrangement, nor are together with any of their respective assetssuch contracts or arrangements entered into after the date hereof, businesses or operations party to, or bound or affected by, or receive benefits under:collectively being “Material Contracts”):
(i) any agreement relating to Indebtedness;
(ii) any contracts under which GFI or any of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess of $500,000;
(iii) any material joint venture, partnershippartnership or strategic alliance contract or investment agreement, limited liability company, shareholder, or other similar agreements or arrangements relating in each case related to the formation, creation, operation, management or control of any partnership, strategic alliance partnership or joint venture;
(iv) venture in which the Company or any of its Subsidiaries owns any partial interest and that is material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(v) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI SubsidiaryCompany and its Subsidiaries, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with taken as a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreementwhole, other than such revenue sharing agreements entered into in the ordinary course of business;
(ii) any settlement, under conciliation or similar contract which would require the Company or any of its Subsidiaries to pay consideration of more than $25,000,000 (after taking into consideration any insurance proceeds available to the Company or any of its Subsidiary, as applicable, in respect thereof) or to satisfy any material non-monetary obligations, in each case after the date of this Agreement;
(iii) any contract that contains any covenant limiting, to a degree that is material to the Company or any of its Subsidiaries, the ability of the Company or any of its Subsidiaries, as applicable, to engage in any line of business or compete with any Person, in each case in any geographic area (excluding any contracts entered into with distributors or suppliers in the ordinary course of business);
(iv) (A) any Person for the acquisition, directly or indirectly (by merger or otherwise) of a material portion of the assets (other than GFI goods, products or a GFI Subsidiaryservices in the ordinary course) has directly or indirectly guaranteed capital stock or provided an indemnity in respect other equity interests of any liabilities, obligations Person for aggregate consideration in excess of $75,000,000 and that has not closed prior to the date hereof or commitments of GFI pursuant to which the Company or any GFI Subsidiary of its Subsidiaries has continuing indemnification (other than indemnification obligations with respect to current or former directors and officers), “earn-out” or other similar contingent payment obligations that are reasonably expected to exceed $75,000,000 in the aggregate after the date hereof or (B) GFI gives any Person the right to acquire any assets of the Company or any GFI Subsidiary has directly of its Subsidiaries (excluding ordinary course commitments to purchase goods, products or indirectly guaranteed or provided an indemnity in respect services) after the date hereof with a total consideration of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less more than $1,000,00075,000,000;
(xv) any other agreement license, sublicense or amendment thereto that would be required to be filed as an exhibit to royalty contract under which a third party licenses any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior Intellectual Property to the Date Company or any of Delivery;its Subsidiaries which would require the Company or any of its Subsidiaries to pay consideration of more than $125,000,000 annually (excluding any non-exclusive licenses of commercially available software or other standard products under standard end-user agreements); and
(xivi) all contracts evidencing any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse EffectAffiliate Arrangements.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor each Material Contract is valid, binding and enforceable on the Company and any GFI Subsidiary 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 (subject to the Bankruptcy and Equity Exception), and is in full force and effect, except where the failure to be valid, binding or in full force and effect, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect, (ii) the Company and each of its Subsidiaries, and, to the Knowledge of GFIthe Company, no any other party isthereto, is in breach or violation ofcompliance with all Material Contracts and has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance, individually or in default underthe aggregate, any GFI Contract, (ii) each GFI Contract is has not had and would not reasonably be expected to have a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principlesMaterial Adverse Effect, (iii) to the Knowledge of GFIthe Company, no neither the Company nor any of its Subsidiaries has received notice of the existence of any event has occurred or condition which would result in a breach or violation ofconstitutes, or a default underor, any GFI Contract (in each case, with or without after notice or lapse of time or both), will constitute, a default on the part of the Company or any of its Subsidiaries under any such Material Contract, except where such default, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect, and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or the GFI Subsidiaries, as applicable, and, to the Knowledge of GFIthe Company, with respect 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, except as, individually or in the aggregate, has not had and would not reasonably be expected to the other parties thereto, and have been delivered or made available to Parenta Material Adverse Effect.
Appears in 1 contract
Contracts. (a) Except for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a3.16(a) of the GFI Company Disclosure LetterLetter sets forth, neither GFI nor as of the date hereof, a true, correct and complete list of each of the following Contracts that are currently in effect and to which the Company or any GFI Subsidiary of its Subsidiaries is a party to or bound byparty, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits underand excluding Company Plans:
(i) any agreement relating to Indebtedness;
(ii) any contracts under which GFI or any of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess of $500,000;
(iii) any “material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(v) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nationscontract” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements entered into in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described such term is defined in Items 601(b)(4) and Item 601(b)(10) of Regulation S-K under of the Securities ActSEC);
(ii) that has not been filed as any Contract relating to Indebtedness of the Company or any of its Subsidiaries (other than intercompany Indebtedness) and having an exhibit to outstanding (or incorporated by reference committed) principal amount in excess of $500,000 in the GFI SEC Documents filed prior aggregate (collectively, “Instruments of Indebtedness”);
(iii) any Contract or obligation that (A) contains ongoing non-competition or exclusive dealing obligations that limit or restrict, in any material respect, the ability of the Company or any of its Affiliates (including, after the Closing, Parent and its Affiliates) to solicit customers for or otherwise sell or distribute the Customer Offerings in any market or geographic area, (B) grants or purports to grant any right of first refusal, right of first offer or similar right or (C) contains a “most favored nation” clause or other term providing preferential pricing or treatment to a third party, in each of cases (A), (B), or (C), that is material to the Date business of Deliverythe Company and its Subsidiaries, taken as a whole;
(iv) any Contract providing for indemnification that could reasonably be expected to result in payments in excess of $250,000 by the Company or any of its Subsidiaries, other than indemnity provisions in Contracts with customers or suppliers of the Company or any of its Subsidiaries entered into in the Ordinary Course of Business;
(v) any joint venture or partnership Contract;
(vi) any Contract providing for any payments that are expressly conditioned on a change of control of the Company or any of its Subsidiaries;
(vii) any collective bargaining agreement or trade union agreement, works council agreement, or similar agreement with any labor or trade union or employee representatives;
(viii) any employment Contract other than (A) offer letters for at will employees without severance, (B) proprietary information agreements on terms consistent with those set forth in the Company’s existing form, a copy of which has been made available to Parent, or (C) Contracts that provide solely compensation and benefits required by applicable Law;
(ix) any Contract that by its express terms provides for severance, retention, change in control payments, or transaction-based bonuses or incentives;
(x) any Contract material to the Company and its Subsidiaries, taken as a whole, providing for the outsourcing, contract manufacturing, testing, assembly or fabrication (as applicable) of any products, technology or services of the Company or any of its Subsidiaries (“Company Products”);
(xi) any agreement under which GFI Contract (excluding Real Property Leases) material to the Company and its Subsidiaries, taken as a whole, providing for the supply of any item used by the Company or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights)a Subsidiary procured from the sole source available to supply such item;
(xii) any agreement that involves expenditures or receipts of GFI Contract material to the Company and its Subsidiaries, taken as a whole, granting the Company or any GFI Subsidiary of its Subsidiaries a license, or other right to use, any Intellectual Property of any third party (excluding commercially-available, off-the-shelf software, or granted incidental to the purchase of associated hardware products) that is embodied in excess or necessary for the use or Exploitation of $3,000,000 in the aggregate per yearany Customer Offering;
(xiii) any material agreement with any Governmental EntityContract entered into in the last five years providing for the acquisition or divestiture of a business;
(xiv) any Government Contract that is material agreement between to the Company and its Subsidiaries, taken as a whole, with any outstanding unperformed obligation or among Affiliates of GFIthat is required to be and has not yet been closed out;
(xv) any Lease for the GFI Leased Real Property, and Contract with any other agreement that relates in any way to the occupancy Top Supplier or use of any of the GFI Leased Real PropertyTop Customer; or
(xvi) any agreement other Contract (excluding Real Property Leases) not made in the termination Ordinary Course of Business that would reasonably be expected to materially prevent the consummation of the Merger or breach any of which or the failure transactions contemplated by this Agreement (the Contracts described in clauses (i) through (xvi), together with the Real Property Leases, being referred to obtain consent in respect of constitutes a herein as “Material Adverse EffectContracts”).
(b) The agreementsTrue, commitments, arrangements correct and plans, whether written or oral, listed or required complete copies of each Material Contract have been made available to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact Parent. Each Material Contract is valid and binding on the respective businesses Company and each of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is its Subsidiaries party thereto and, to the Knowledge knowledge of GFIthe Company, no any other party isthereto, except for such failures to be valid and binding that would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole. Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, there is no breach or violation ofdefault under any Material Contract by the Company or any of its Subsidiaries party thereto or, to the knowledge of the Company, any other party thereto, and no event has occurred that, with the lapse of time or the giving of notice or both, would constitute a breach or default thereunder by the Company or any of its Subsidiaries party thereto or, to the knowledge of the Company, any other party thereto.
(c) There are no provisions in any Instrument of Indebtedness that provide any restrictions on the repayment of the outstanding Indebtedness thereunder, or that require that any financial payment (other than payment of outstanding principal and accrued interest) be made in default underthe event of the repayment of the outstanding Indebtedness thereunder prior to expiration. “Indebtedness” means, with respect to any GFI ContractPerson, all obligations (including all obligations in respect of principal, accrued interest, penalties, prepayment penalties, fees and premiums) of such Person (i) for borrowed money, (ii) each GFI Contract is a valid and binding agreement of GFI evidenced by notes, bonds, debentures or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principlesinstruments, (iii) under conditional sale or other title retention agreements relating to property acquired by such person or for the Knowledge deferred purchase price of GFIproperty, no event has occurred which would result goods or services (other than trade payables or accrued expenses incurred in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse the Ordinary Course of time or bothBusiness), and (iv) each GFI Contract under capital leases (including all modifications in accordance with GAAP) or synthetic lease obligations, (v) in respect of letters of credit, surety bonds and amendments thereto bankers’ acceptances, (vi) under interest rate or currency swap or other derivative or hedging instruments and waivers thereundertransactions (valued at the net termination value thereof), (vii) is in full force and effect with respect to GFI secured by any Lien, other than Permitted Liens, on property or assets owned by such Person, whether or not the GFI Subsidiaries, as applicable, and, to the Knowledge of GFI, with respect to the other parties thereto, and obligations secured thereby have been delivered assumed, (viii) under any sale and lease back transaction, Contract to repurchase securities sold or made available to Parentother similar financing transaction and (ix) in the nature of guarantees of the obligations described in clauses (i) through (viii) above of any other Person.
Appears in 1 contract
Contracts. (a) Except for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a3.13(a) of the GFI Company Disclosure LetterSchedule sets forth, neither GFI nor as of the date hereof, a true and complete list of each Contract to which the Company or any GFI Company Subsidiary is a party to or bound bywhich binds or affects their respective properties or assets, nor are and that falls within any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits underthe following categories:
(i) any agreement relating to Indebtedness;
(ii) any contracts under which GFI or any of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess of $500,000;
(iii) any material joint venture, partnershipfranchise, limited liability companyequity investment, shareholder, partnership or other similar agreements or arrangements relating strategic alliance Contract related to the formation, creation, operation, management or control of any partnership, strategic alliance joint venture or joint ventureother similar entity in which the Company or any Company Subsidiary owns any partial interest and that is material to the business of the Company and the Company Subsidiaries, taken as a whole;
(ii) any Contract that (A) requires or provides for capital expenditures (or series of capital expenditures) by the Company or any Company Subsidiary in an amount in excess of $5,000,000 individually or (B) requires or specifically provides for any annual payments or receipts by the Company or any of the Company Subsidiaries in an amount in excess of $5,000,000 entered into other than (x) in the ordinary course of business or (y) in connection with the process leading to the entry into this Agreement and the consummation of the transactions contemplated hereby;
(iii) any Contract that is a Material Company Lease;
(iv) any material agreement relating to any strategic alliancesettlement, joint development, joint marketing, partnership conciliation or similar arrangementagreement (A) with any Governmental Entity or (B) that would require the Company or any of the Company Subsidiaries to pay consideration of more than $1,500,000 after the date of this Agreement;
(v) any agreement Contract that contains any covenant restricting or series of related agreementslimiting, including any option agreement, relating in a respect or to a degree that is material to the acquisition Company and the Company Subsidiaries, taken as a whole, the ability of the Company or disposition any of the Company Subsidiaries to engage in any line of business or compete with any Person, in each case in any geographic area;
(vi) any Contract, other than any Contract described by the parenthetical phrase in Section 3.13(a)(xi), expressly limiting the ability of the Company or the Company Subsidiaries (A) to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the case may be, (B) to make loans to the Company or any of the Company Subsidiaries or (C) to grant Liens on the property of the Company or any of the Company Subsidiaries;
(vii) any Contract with or binding upon the Company or any of the Company Subsidiaries or any of their respective properties or assets that is of the type that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act;
(viii) any Contract under which the Company or any Company Subsidiary licenses or sublicenses Intellectual Property material to the business of the Company and the Company Subsidiaries, taken as a whole, (A) from any third party (x) on an exclusive basis or (y) on a non-exclusive basis other than in the ordinary course of business (other than any Contract that is a software (including software-as-a-service) license or sublicense for internal use only for an aggregate consideration under such license or sublicense of less than $5,000,000) or (B) to any third party (x) on an exclusive basis or (y) on a non-exclusive basis other than in the ordinary course of business;
(ix) any Contract pursuant to which the Company or any of the Company Subsidiaries is a party that creates or grants a material Lien on properties or other assets of the Company or any of the Company Subsidiaries, other than any Permitted Liens;
(x) (A) any Contract for the acquisition, directly or indirectly (by merger or otherwise), by the Company or any Company Subsidiary of a business or division or capital stock or other equity interests of any business Person (other than the Company or real property a Company Subsidiary) (whether by merger, sale of stock, sale of assets or otherwisex) for aggregate consideration in excess of $2,000,000;
5,000,000 and entered into on or after January 1, 2013 or (viy) pursuant to which the Company or any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the Company Subsidiaries has continuing or outstanding voting securities purchase price adjustment, indemnification, “earn-out” or other similar contingent payment obligations after the date hereof in excess of GFI $5,000,000 or any GFI Subsidiary, (B) any Contract that gives any Person 5% or more the right to acquire any assets of the outstanding voting securities Company or the Company Subsidiaries (excluding ordinary course commitments to purchase goods, products or services) after the date hereof with a total consideration of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or more than $5,000,000; and
(Cxi) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other Contract providing for or securing indebtedness for borrowed money (other than such agreements entered into trade payables in the ordinary course of business, under which (Acourse) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilitiesfinancial guaranty, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for with respect to a principal amount in excess of $5,000,000. Each Contract of the purpose of collection type described in a commercially reasonable manner consistent with industry practicethis Section 3.13(a), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) together with any other agreement or amendment thereto that would be Contract required to be filed by the Company as an exhibit a “material contract” pursuant to any GFI SEC Document (as described in Items 601(b)(4) and Item 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed , is referred to herein as an exhibit to or incorporated by reference a “Company Material Contract.” A true and complete copy of each Company Material Contract in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any effect as of the GFI Leased Real Property; or
date hereof has been made available to Merger Sub (xviincluding, where applicable, pursuant to agreed-upon procedures to protect competitively sensitive information) any agreement or publicly filed with the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse EffectSEC.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) As of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except date hereof, except as would not have reasonably be expected to have, individually or in the aggregate, a material impact on the respective businesses of GFI and the GFI Subsidiaries, Company Material Adverse Effect: (i) neither GFI nor any GFI each Company Material Contract is a valid, binding and enforceable obligation of the Company or the Company Subsidiary is party thereto and, to the Knowledge of GFIthe Company, no each other party is, in breach or violation of, or in default under, any GFI Contract, thereto (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, fraudulent transfer moratorium and other similar laws Laws of general applicability relating to or affecting creditors’ rights or by rights, and to general equity equitable principles, (iiiincluding specific performance and injunctive and other forms of equitable relief) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both), and (ivii) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or neither the GFI Subsidiaries, as applicable, andCompany nor any Company Subsidiary nor, to the Knowledge of GFIthe Company, with respect to the other parties theretoany counterparty, and have been delivered is in breach or made available to Parentdefault under any Company Material Contract.
Appears in 1 contract
Contracts. All of the Contracts, including, without limitation, any contract, agreement, lease, instrument, guarantee, bid, order or proposal to which the Company or any of its Subsidiaries is a party or to which any of the assets of the Company or any of its Subsidiaries are bound that, (a) Except for this Agreementgovern the borrowing of money or the Guarantee or the repayment of Indebtedness (other than accounts receivable or payable in the Ordinary Course of Business of the Company and its Subsidiaries) or granting of Encumbrances (other than Permitted Encumbrances) on any property or asset of the Company or any of its Subsidiaries; (b) contracts with the Company Materials Customers (as defined) (c) contain covenants limiting the freedom of the Company or any of its Subsidiaries to compete in any line of business or with any Person or in any geographic area or market; (d) which restrict the use of its Intellectual Property (and excluding licenses of commercially available software) less than US$ 25000 in value; (e) are with any Directors, officers, employees, any Seller or Stock Option Holder (other than the CME Merger Agreement Stock Option Plan and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(anotice forms thereunder) of the GFI Disclosure Letter, neither GFI nor any GFI Subsidiary is a party to or bound by, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:
(i) any agreement relating to Indebtedness;
(ii) any contracts under which GFI Company or any of its Subsidiaries or Affiliates of any of the GFI Subsidiaries has advanced Sellers; (f) provide for the purchase, maintenance or loaned any Person any amounts acquisition, or the sale or furnishing, of materials, supplies, merchandise or equipment (including but not limited to computer hardware or software or other property or services) in excess of $500,000;
US$ 50,000; (iiig) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating grant to any strategic alliancePerson a first-refusal, joint development, joint marketing, partnership first-offer or similar arrangement;
preferential right to purchase or acquire any right, asset or property of the Company or any of its Subsidiaries (v) any agreement or series of related agreements, including any option agreement, relating to other than the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (AFirst Magnus-I which is being amended in connection with the Transaction) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of and the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements entered into in Company's Series B Preferred Stock financing round which the ordinary course of business, rights under which such agreements shall terminate at Closing; (Ah) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect pertain to the lease of any liabilities, obligations individual equipment or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary individual personal property in excess of $3,000,000 in US$ 50,000; (i) provide for any counter trade or barter arrangement; (j) involve a material distributor, sales representative, broker or advertising arrangement that by its express terms is not terminable by the aggregate per year;
Company or any of its Subsidiaries at will or by giving notice of 30 days or less, without liability; (xiiik) involve a joint venture; or (l) involve the acquisition of any material agreement with any Governmental Entity;
business enterprise whether via stock or asset purchase or otherwise; and each of the foregoing Contracts are hereby defined as a "Seller Material Contract." The Company and each of its Subsidiaries (xivas applicable) any material agreement between has provided or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way made available to the occupancy or use Buyer true, correct and complete copies of any each such Contract, as amended through the date of the GFI Leased Real Property; or
this Agreement. Each Seller Material Contract listed on Schedule 4.13 (xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effect.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(aon Schedule 4.13) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement obligation of GFI the Company or any of its Subsidiaries that is a GFI Subsidiary, as party to such Material Contract. With respect to the case may be, enforceable Seller Material Contracts listed on Schedule 4.13 (or required to be listed on Schedule 4.13): (i) neither the Company nor any of its Subsidiaries or any other party thereto is to the Knowledge of the Buyer in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws material default under or in material violation of general applicability relating to or affecting creditors’ rights or by general equity principles, any such Seller Material Contract; (iiiii) to the Knowledge of GFIthe Representing Sellers, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each casewhich, with or without notice or lapse of time or both), would constitute such a material default or material violation; and (iviii) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or neither the GFI Subsidiaries, as applicable, and, to the Knowledge Company nor any of GFI, with respect to the other parties thereto, and have been delivered or made available to Parentits Subsidiaries has released any of its material rights under any such Seller Material Contract.
Appears in 1 contract
Contracts. (a) Except for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(aSchedule 3.13(a) lists each of the GFI Disclosure Letter, neither GFI nor any GFI Subsidiary is a party to or bound by, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:following Contracts (the “Material Contracts”):
(i) each Contract that evidences any agreement relating to IndebtednessDebt of the Company or the Subsidiary;
(ii) any contracts under which GFI each Contract (other than Leases), whether in the ordinary course of business or any not, involving a present or future remaining or unsatisfied obligation of the GFI Subsidiaries has advanced Company or loaned any Person any amounts the Subsidiary to purchase or deliver property, goods or services of an amount or value in excess of $500,00050,000 each, or for a term in excess of one year;
(iii) any material joint ventureall broker, partnershipdistributor, limited liability companydealer, shareholdermanufacturer’s representative, franchise, agency, sales promotion, market research, marketing, consulting or advertising Contracts providing for remaining or unsatisfied payments to or from the Company or the Subsidiary in excess of $50,000 each, or other similar agreements or arrangements relating to the formation, creation, operation, management or control for a term in excess of any partnership, strategic alliance or joint ventureone year;
(iv) any material agreement relating agreements or commitments to any strategic alliance, joint development, joint marketing, partnership or similar arrangementmake future capital expenditures in excess of $50,000 with respect to the Business (excluding requirements under Company Facility Leases with respect to Company Facilities that are not yet opened for retail);
(v) any agreement agreements to sell, lease or series of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition otherwise dispose of any material assets or line properties of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, the Company other than such agreements entered into in the ordinary course of business, under which ;
(Avi) all Leases;
(vii) all Contracts with any Person Seller or any Affiliates of a Seller (other than GFI the Company);
(viii) all non-compete or a GFI Subsidiary) has directly similar Contracts restricting the scope of the conduct of the Business or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI prohibiting the Company or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity Seller from engaging in respect of liabilities, obligations or commitments of any other Person type of business or operating in any geographic area;
(ix) all other than GFI Contracts entered into outside of the ordinary course of business with a value in excess of $50,000 each, or for a GFI Subsidiary) (term in each case other than endorsements for the purpose excess of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000one year;
(x) all employment Contracts with employees or contract workers and any other agreement Contract with any employee that provides for the payment of severance upon a “change of control” of the Company or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) the termination of Regulation S-K under the Securities Act) that has not been filed as an exhibit to such employee’s employment or incorporated by reference which is in the GFI SEC Documents filed prior to the Date nature of Deliverya stay bonus or retention bonus;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand all franchise agreements and piggy-back registration rights);all amendments thereto; and
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, Partnership Agreement and any other agreement that relates in Contract creating or governing any way to the occupancy joint venture or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effectpartnership.
(b) The agreements, commitments, arrangements Sellers have provided the Buyer complete and plans, whether written or oral, listed or required to be listed in Section 2.19(a) accurate copies of each of the GFI Disclosure Letter together Material Contracts including all amendments thereto, except that the Company Facility Leases have been redacted to remove identifying store location information and, after complying with Section 5.15, the GFI License Agreements are referred to herein as Sellers will have provided the “GFI Contracts.” Except as would not have a material impact Buyer complete and accurate copies of the Company Facility Leases. Each Material Contract is valid and binding on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments parties thereto and waivers thereunder) is in full force and effect with respect to GFI effect. There are no existing defaults, violations or breaches by the Company or the GFI SubsidiariesSubsidiary under any Material Contract that affect or will affect the enforceability of such Material Contract or any party’s rights thereunder, as applicable, and, or which would reasonably be likely to give rise to any Damages. To the Knowledge of GFIeach Seller, with respect none of the counterparties to the other parties thereto, and have been delivered any Material Contract is in breach or made available to Parentdefault thereunder.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Mattress Firm Holding Corp.)
Contracts. (ai) Except for Section 4.01(i) of the Company Letter contains a complete and correct list, as of the date of this Agreement, the CME Merger Agreement and of:
(A) any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth "material contract" (as such term is defined in Section 2.19(aItem 601(b)(10) of Regulation S-K of the GFI Disclosure LetterSEC, neither GFI nor other than those agreements and arrangements described in Item 601(b)(10)(iii)) with respect to the Company and its Subsidiaries, taken as whole;
(B) each Contract pursuant to which the Company or any GFI Subsidiary of its Subsidiaries has agreed not to compete with any person in any area or to engage in any activity or business;
(C) each Contract to which the Company or any of its Subsidiaries is a party providing for exclusivity or pursuant to which the Company or bound byany of its Subsidiaries is restricted in any material way, nor are or which after the Effective Time would restrict Parent or any of its Subsidiaries in any material way, with respect to the development, manufacture, marketing or distribution of their respective assets, businesses products or operations party to, services or bound or affected by, or receive benefits under:
(i) any agreement relating otherwise with respect to Indebtednessthe operation of their businesses;
(iiD) any contracts under each Contract to which GFI the Company or any of its Subsidiaries is a party with any officer or director of the GFI Company or any of its Subsidiaries has advanced or loaned any Person any amounts involving the payment of salary in excess of $500,000100,000 or more in any fiscal year;
(iiiE) each Contract (excluding purchase orders) under which the Company or any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of its Subsidiaries has incurred any partnership, strategic alliance or joint ventureindebtedness in excess of $50,000;
(ivF) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(v) any agreement or series of related agreements, including any option agreement, Contract currently in force relating to the acquisition or disposition by the Company or any of any its Subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or real property (whether pursuant to which the Company or any of its Subsidiaries have continuing material obligations to jointly develop Intellectual Property that will not be owned, in whole or in part, by merger, sale the Company or any of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000its Subsidiaries;
(viG) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power each Contract to vote, 5% or more of which the outstanding voting securities of GFI Company or any GFI Subsidiary, (B) any Person 5% of its Subsidiaries is a party creating or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement granting a material Lien (including material Liens upon any exclusivity agreement) that purports to limit properties or restrict in any material respect either the type of business in which GFI assets acquired under conditional sales, capital leases or any GFI Subsidiary may engage other title retention or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreementsecurity devices), other than such agreements entered into (1) Liens for taxes not yet due and payable, that are payable without penalty or that are being contested in good faith and for which adequate reserves have been recorded in accordance with GAAP, (2) Liens for assessments and other governmental charges or landlords', carriers', warehousemen's, mechanics', repairmen's, workers' and similar Liens incurred in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case for sums not yet due and payable or due but not delinquent or being contested in good faith by appropriate proceedings, (3) Liens incurred in the ordinary course of business in connection with workers' compensation, unemployment insurance and other than endorsements for types of social security or to secure the purpose performance of collection tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, performance and return of money bonds and similar obligations, (4) Liens in favor of depositary institutions or institutions where the Company or any of its Subsidiaries maintains a securities account, (5) leases and subleases, (6) easements, covenants, rights of way (recorded and unrecorded), and other similar restrictions, and zoning, building and other similar restrictions, in each case that do not adversely effect in any material respect the current use of the applicable property, (7) statutory, common law or contractual Liens of landlords and (8) Liens incurred in the ordinary course of business that are not reasonably likely to adversely interfere in a commercially reasonable manner consistent material way with industry practice)the use of properties or assets encumbered thereby (the Liens listed on Section 4.01(i)(i)(G) of the Company Letter, unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as together with the Liens described in Items 601(b)(4the foregoing clauses (1) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
through (xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights8) collectively, "Permitted Liens");
(xiiH) any agreement that involves expenditures or receipts of GFI each Contract pursuant to which the Company or any GFI Subsidiary of its Subsidiaries grants any person a right of first refusal, right of first offer or similar right with respect to the assets, properties or business of the Company or its Subsidiaries;
(I) each Contract (1) which requires the Company or any of its Subsidiaries to make any purchases on a requirements or volume purchase basis for any period of time after the date hereof, (2) pursuant to which the Company or any of its Subsidiaries has agreed to provide a customer with its requirements or meet production volumes for any period of time after the date hereof, or (3) which requires the Company or any of its Subsidiaries to maintain the production of any products or provision of any services for any period of time after the date hereof;
(J) each Contract pursuant to which the Company or any of its Subsidiaries has warranted customers that the Company's products will not be subject to any epidemic or wide-spread failures or defects or otherwise expressly assumed liability for such failures or defects;
(K) each Contract to which the Company or any of its Subsidiaries is a party granting the other party to such Contract or a third party "most favored nation" pricing or terms that (1) applies to the Company or any of its Subsidiaries or (2) following the Effective Time, would apply to Parent or any of its Subsidiaries other than the Surviving Corporation;
(L) each Contract to which the Company or any of its Subsidiaries is a party for any joint venture (whether in partnership, limited liability company or other organizational form) or material collaboration or similar arrangement;
(M) each material Contract to which the Company or any of its Subsidiaries is a party entered into in the last three years in connection with the settlement or other resolution of any suit, claim, action, investigation or proceeding;
(N) each Contract between the Company or any of its Subsidiaries and any of the five (5) largest customers of the Company and its Subsidiaries (determined on the basis of revenues received by the Company or any of its Subsidiaries for the four consecutive fiscal quarters ended March 31, 2007 (each such customer, a "Major Customer", and each such Contract, a "Major Customer Contract");
(O) a list of the Company's and its Subsidiaries' largest suppliers (by dollars spent on purchases) for the period covering the fiscal year ended December 31, 2006 presented on the basis of commodity type (each such supplier, a "Major Supplier", and each such Contract, a "Major Supplier Contract");
(P) except for the Contracts described above, each Contract that has aggregate future sums due to or from the Company or any of its Subsidiaries, taken as a whole, during the period commencing on the date of this Agreement and ending on the 12-month anniversary of this Agreement, in excess of $3,000,000 in the aggregate per year;3 million; and
(xiiiQ) any material agreement Contract, or group of Contracts with any Governmental Entity;
a person (xiv) any material agreement between or among Affiliates group of GFI;
(xv) any Lease for the GFI Leased Real Propertyaffiliated persons), and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes would have a Material Adverse Effect.
Effect and is not disclosed pursuant to clauses (bA) through (P) above. The agreements, commitments, arrangements Contracts of the Company or any of its Subsidiaries of the type referred to in clauses (A) through (Q) above and plans, whether written or oral, listed or required to be listed in Section 2.19(aSections 4.01(o)(iii) and (p)(i) of the GFI Disclosure Company Letter together with the GFI License Agreements are collectively referred to herein in this Agreement as "Specified Contracts". The Company has made available to Parent a complete and correct copy of each of the “GFI Specified Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI including all amendments thereto. Each Specified Contract is in full force and effect (except for those Contracts that have expired in accordance with their terms) and is a legal, valid and binding agreement of GFI the Company or a GFI its Subsidiary, as the case may be, and, to the knowledge of the Company, of each other party thereto, enforceable against the Company or such Subsidiary, as the case may be, and, to the knowledge of the Company, against the other party or parties thereto, in each case, in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, fraudulent transfer and moratorium or other similar laws of general applicability Laws relating to or affecting the enforcement of creditors’ ' rights or generally and by general principles of equity principles, (iii) regardless of whether enforcement is sought in equity or at law). Each of the Company and its Subsidiaries has performed or is performing all obligations required to be performed by it under the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract Specified Contracts and is not (in each case, with or without notice or lapse of time or both)) in breach in any respect or default thereunder, and (iv) has not waived or failed to enforce any rights or benefits thereunder, in each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is case except as would not reasonably be expected, individually or in full force and effect with respect to GFI or the GFI Subsidiaries, as applicable, andaggregate, to have a Material Adverse Effect or prevent or materially delay consummation of the Knowledge Offer, the Merger and the transactions contemplated by this Agreement. To the knowledge of GFIthe Company, no other party to any of the Specified Contracts is (with or without notice or lapse of time or both) in breach in any material respect or default thereunder, except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect. To the knowledge of the Company, there has occurred no event giving (with or without notice or lapse of time or both) to others any right of termination, material amendment or cancellation of any Specified Contract.
(ii) None of the Major Customers or Major Suppliers has terminated, failed to renew or requested any material amendment to any of its Major Customer Contracts or Major Supplier Contracts, or any of its existing relationships, with respect to the other parties thereto, and have been delivered Company or made available to Parentany of its Subsidiaries.
Appears in 1 contract
Contracts. (a) Except for Schedule 3.9(a) sets forth a list of all Material Contracts as of the date of this Agreement. For purposes of this Agreement, “Material Contract” means any Contract to which the CME Merger Agreement and Company or any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) of the GFI Disclosure Letter, neither GFI nor any GFI Subsidiary its Subsidiaries is a party to or bound by, nor are by which the Company or any of its Subsidiaries or any of their respective assetsproperties or assets is bound (in each case, businesses or operations party to, or bound or affected by, or receive benefits underexcluding any Seller Plan) that:
(i) any agreement relating is or would be required to Indebtednessbe 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;
(ii) any contracts under which GFI or any of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess of $500,000;
(iii) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating relates to the formation, creation, operationgovernance, management economics or control of any partnership, strategic alliance or joint venture, partnership or other similar arrangement (including any Contract involving a sharing of revenues, profits, losses, costs or liabilities), other than (A) with respect to any partnership that is wholly owned by the Company or any of its wholly owned Subsidiaries and (B) for the avoidance of doubt, marketing, licensing, manufacturing, development and distribution Contracts entered into in the Ordinary Course;
(iii) (A) is for Indebtedness of the Company or any of its Subsidiaries; (B) relates to the mortgaging or pledging of, or otherwise placing an Encumbrance (other than a Permitted Encumbrance) on, any of the Acquired Assets; or (C) is in the nature of a capital or direct financing lease that is required by GAAP to be treated as a long-term liability involving payments above $1,000,000 annually, in each case other than (x) Indebtedness solely between or among any of the Company and its wholly-owned Subsidiaries or (y) Liabilities which will be fully discharged under the Bankruptcy Code;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(v) any agreement or series of related agreements, including any option agreement, relating relates to the acquisition or disposition of any business business, assets or real property properties (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration under such Contract in excess of $2,000,0005,000,000 (A) that was entered into after January 1, 2017 or (B) pursuant to which any material earn-out, indemnification or deferred or contingent payment obligations remain outstanding (in each case, excluding for the avoidance of doubt, acquisitions of Inventory in the Ordinary Course);
(v) under which the Company or any of its Subsidiaries is lessee of (i) any real property or (ii) material personal property with annual lease payments in excess of $500,000, in each case, owned by any other party (including the Leased Real Property);
(vi) any material agreement with is a Contract (A) (other than purchase orders), with any Person directly Material Supplier or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% for the purchase of materials, supplies, goods, services, Equipment or more of other assets pursuant to which the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI Company or any GFI Subsidiary or of its Subsidiaries would reasonably be expected to make payments of more than $3,000,000 during any fiscal year (Cother than a Contract with any Material Supplier that is otherwise disclosed in subsection (A) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiaryabove);
(vii) is a Contract (other than purchase orders) (A) with any agreement Material Customer or (including any exclusivity agreementB) that purports to limit with a direct or restrict in any material respect either indirect customer of the type of business in which GFI Company or any GFI Subsidiary may engage of its Subsidiaries (other than a Material Customer) pursuant to which the Company or the manner or locations in which any of them may so engage in any business or could require its Subsidiaries received aggregate net payments of more than $5,000,000, during the disposition of any material assets or line of business of GFI or any GFI Subsidiaryfiscal year ended December 31, 2019;
(viii) contains any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict (A) limiting, in any material respect GFI respect, the right of the Company or any GFI Subsidiary;
of its Subsidiaries to engage in any business (ixincluding developing or commercializing any pharmaceutical products), compete with any Person, or operate anywhere in the world (other than provisions in any license agreements for Intellectual Property limiting the Company’s and its Subsidiaries’ use of applicable Intellectual Property of a third party to specified fields of use or specified territories), (B) granting any agreementexclusivity right to any third party, or containing a “most favored nation” provision or any option, right of first refusal or preferential or similar right in favor of any third party or that is a “take or pay” or similar provision requiring the business to make a minimum payment for goods or services from third party suppliers irrespective of usage, in each case, other than such agreements entered into in a Contract that can be terminated by the ordinary course Company or one of business, under which its Subsidiaries on ninety (A90) any Person (other than GFI days’ notice or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effect.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result without resulting in a breach or violation of, or a default any acceleration of any rights or obligations or the payment of any money under, any GFI such Contract;
(ix) is a Contract (x) that contains an exclusive license of Intellectual Property to the Company or any of its Subsidiaries that is material to the business of the Company and its Subsidiaries as currently conducted or (y) pursuant to which the Company or any of its Subsidiaries has a right to use any Intellectual Property of any other Person, which Intellectual Property is material to the business of the Company and its Subsidiaries as currently conducted, excluding in each casecase (A) licenses that are ancillary or incidental to the sale of goods or provision of services and (B) standard licenses for computer software that is readily commercially available on a “click wrap” or other similar basis;
(x) is a Contract with a Governmental Body;
(xi) is a surety or guarantee agreement or other similar undertaking with respect to contractual performance;
(xii) is a license, sublicense, development, collaboration or royalty agreement or other Contract relating to the use of any Company Owned Intellectual Property by any third party (other than licenses granted to customers, resellers and distributors in the Ordinary Course) pursuant to which the Company or any of its Subsidiaries received payments above $1,000,000 during the fiscal year ended December 31, 2019;
(xiii) is a Contract for any interest rate, currency or commodity derivatives or hedging transaction; or
(xiv) is a binding commitment or agreement to enter into any of the foregoing.
(b) Subject to requisite Bankruptcy Court approvals, and assumption by the applicable Seller of the applicable Contract in accordance with applicable Law (including satisfaction by Purchaser of any applicable Cure Costs) and except with respect to any Contract that has previously expired in accordance with its terms (or, after the date of this Agreement, is terminated, restated or without replaced in compliance with this Agreement), subject to the Enforceability Exceptions, (i) each 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 Sellers, each other party thereto, and is in full force and effect; (ii) the Company and each of its Subsidiaries, and, to the Knowledge of Sellers, any other party thereto, have performed all obligations required to be performed by it under each Material Contract; (iii) except as a result of the commencement of the Bankruptcy Case, neither the Company nor any of its Subsidiaries have given or received 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; (iv) except as a result of the Bankruptcy Case, there are no events or conditions which constitute, or, after notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI will constitute a default on the part of the Company or the GFI any of its Subsidiaries, as applicable, and, or to the Knowledge of GFISellers, with respect any counterparty under such Material Contract; and (v) to the other parties Knowledge of Sellers, the Company has not received any notice from any Person that such Person currently intends to terminate, or not renew, any Material Contract, in each instance of (ii), (iii), (iv) and (v), except as would not, individually or in the aggregate, reasonably be expected to be material to the Acquired Assets and the Assumed Liabilities, taken as a whole.
(c) There are no Material Contracts that cannot be readily fulfilled or performed by the Company and its Subsidiaries without undue or unusual expenditure of money or effort or any preparation, action or arrangement outside of the Ordinary Course (including, as may be a result of any pandemic (including the “Coronavirus” or “COVID-19”) or any quarantine or trade restrictions related, or which would reasonably be expected to be related, thereto, and have been delivered or made available to Parent).
Appears in 1 contract
Sources: Asset Purchase Agreement (Akorn Inc)
Contracts. (a) Except for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) 3.14 of the GFI Disclosure Letter, neither GFI nor Schedule sets forth a true and complete list of each of the following Contracts to which any GFI Subsidiary Target Company is a party to or bound by, nor are any as of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits underthe date of this Agreement:
(i) any agreement relating Contract for the lease of personal property from or to Indebtednessthird parties providing for lease payments in excess of BRL$500,000 per annum or having a remaining term longer than twelve (12) months;
(ii) any contracts under Contract for the purchase or sale of products or for the furnishing or receipt of services (A) which GFI or any calls for performance over a period of the GFI Subsidiaries has advanced or loaned any Person any amounts more than one (1) year, (B) which involves aggregate consideration in excess of $500,000BRL$1,000,000 per year (whether payable or receivable by any Target Company), except for those related to the Central Plant Expansion, or (C) in which any Target Company has granted manufacturing rights, service-level guarantees, “key man” provisions, “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 material joint venture, Contract concerning the establishment or operation of a partnership, limited liability company, shareholder, joint venture or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venturearrangement;
(iv) any material agreement relating to any strategic alliancedistribution, joint developmentdealer, joint marketing, partnership sales representative or similar arrangementsales agency Contract;
(v) any agreement Contract under which any Target Company has created, incurred, assumed or series guaranteed (or may create, incur, assume or guarantee) Indebtedness (including capitalized lease obligations), or under which any Target Company has imposed (or may impose) a Lien on any of related agreementsits assets, including any option agreement, relating to the acquisition tangible or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000intangible;
(vi) any material agreement with (A) Contract for the disposition of any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more significant portion of the outstanding voting securities assets or business of GFI any Target Company (other than sales of products in the Ordinary Course of Business) or any GFI Subsidiary, (B) any Person 5% or more Contract for the acquisition of the outstanding voting securities assets or business of which are directly any other Person (other than purchases of inventory or indirectly ownedcomponents in the Ordinary Course of Business), controlled or held except in connection with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiarythe Central Plant Expansion;
(vii) any agreement (including Contract containing a covenant of any exclusivity agreement) that purports Target Company purporting to limit or restrict in any material respect either the type or line of business in which GFI or any GFI Subsidiary Target Company may engage or the manner or locations geographic area in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiaryengage;
(viii) any agreement employment or consulting Contract that provides for an annual base salary or other fees equal to or in excess of BRL$1,000,000 or that provides for severance or termination pay in connection with a non-solicitation termination of employment or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiaryservice;
(ix) any agreementContract involving any current or former officer, other than such agreements entered into in the ordinary course of business, under which (A) any Person (other than GFI director or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect stockholder of any liabilities, obligations Target Company or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000Affiliate thereof;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of DeliveryLabor Agreement;
(xi) any agreement Contract under which GFI the consequences of a default or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights)termination would reasonably be expected to have a Material Adverse Effect;
(xii) any agreement that involves expenditures Contract which contains any provisions requiring a Target Company to indemnify any other party (excluding indemnities contained in agreements for the purchase, sale or receipts license of GFI or any GFI Subsidiary in excess of $3,000,000 products entered into in the aggregate per yearOrdinary Course of Business);
(xiii) any material agreement with settlement Contract arising out of any claim asserted by any Person (including any Governmental Entity);
(xiv) any material agreement between or among Affiliates of GFICompany Intellectual Property License;
(xv) any Lease for Contract either involving aggregate consideration in excess of BRL$1,000,000 per year (whether payable or receivable by any Target Company), except in connection with the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real PropertyCentral Plant Expansion; orand
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse EffectShared Contract.
(b) The agreements, commitments, arrangements Stockholders have delivered to AMSC Brazil a complete and plans, whether written or oral, listed or accurate copy of each Contract required to be listed in Section 2.19(a) 3.10, Section 3.11 or Section 3.14 of the GFI Disclosure Letter Schedule, together with the GFI License Agreements are referred all amendments, modifications or supplements thereto. With respect to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, each Contract required to be so listed: (i) neither GFI nor any GFI Subsidiary the Contract is andlegal, valid, binding and enforceable and in full force and effect; (ii) the Contract will continue to be legal, valid, binding and enforceable and in full force and effect immediately following the Closing in accordance with the terms thereof as in effect immediately prior to the Closing; (iii) no party to such Contract has exercised or, to the Knowledge knowledge of GFIthe Stockholders, threatened to exercise any termination rights with respect to any such Contract; and (iv) none of the Target Companies is, and to the knowledge of the Stockholders, no other party is, in breach or violation of, or in default under, any GFI such Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which occurred, is pending or, to the knowledge of the Stockholders, is threatened, which, after the giving of notice, with lapse of time, or otherwise, would result in constitute a breach or violation of, or a default under, by any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or the GFI Subsidiaries, as applicable, andTarget Company or, to the Knowledge knowledge of GFIthe Stockholders, with respect to the any other parties thereto, and have been delivered or made available to Parentparty under such Contract.
Appears in 1 contract
Sources: Stock Exchange Agreement (American Superconductor Corp /De/)
Contracts. (a) Except for this Agreement, Schedule 3.11(a) sets forth the CME Merger Agreement following Contracts (and any agreements contemplated by CME Merger Agreement or amendments thereto, including the transactions contemplated thereby name and any contract set forth in Section 2.19(a) date of the GFI Disclosure Letter, neither GFI nor any GFI Subsidiary agreement and the names of the parties thereto) to which the Company is a party to or bound by, nor are any of their respective assets, businesses or operations party to, or by which the Company is bound or affected byto which any asset or property of the Company is subject or under which the Company has any rights or the performance of which is guaranteed by the Company or that constitute Shared Contracts (collectively, or receive benefits under:with the Leases, Intellectual Property Licenses, Employee Benefit Plans and Insurance Policies, the “Material Contracts”):
(i) any agreement relating to Indebtednesseach Contract with (A) a Key Customer from which the Business derived, in the aggregate, above $60,000 in annual recurring revenue as of the last day of each of the fiscal year ended December 31, 2023 and the Interim Period or (B) a Key Vendor for the fiscal year ended December 31, 2023 and the Interim Period;
(ii) any contracts under which GFI each lease, rental or occupancy agreement, license, installment and conditional sale agreement or other Contract affecting the ownership of, leasing of, title to, use of, or any of leasehold or other interest in, any personal property used in the GFI Subsidiaries has advanced Business and (A) owned by the Company, excluding Intellectual Property Licenses, or loaned (B) owned by any Person any amounts in excess of $500,000other than the Company;
(iii) any material joint ventureeach broker, partnershipdistributor, limited liability companysales representative, shareholderdealer, rebate, reseller, franchise, agency, sales promotion, finder, market research or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint ventureadvertising Contract;
(iv) each resale, joint venture, partnership or Contract involving a sharing of profits, losses, costs, revenues, Taxes or Liabilities with any material agreement relating to any Person, and each strategic alliance, joint developmentco-marketing, joint marketing, partnership development or similar arrangement;
(v) each Contract containing any covenant that purports to restrict the business activity of the Company or the Business or limit the freedom of the Company or the Business to engage in any line of business, market, jurisdiction or geographic area or to compete with, solicit, hire or disparage any Person;
(vi) each Contract containing any fixed or indexed pricing, “most favored nation” pricing or similar pricing terms or provisions regarding minimum volumes, volume discounts or rebates;
(vii) each Contract requiring the Company or the Business to purchase its total requirement of any product or service from a third party or containing “take or pay” provisions or otherwise containing any exclusive dealing arrangements or requirements;
(viii) each settlement agreement containing outstanding obligations of the Company;
(ix) each Contract providing for commissions, rebates or other payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(x) each Contract that relates to management, consulting, advertising, marketing, promotion or advisory services with respect to the business of the Company;
(xi) each Contract that contains indemnification, advancement or similar obligations in favor of any director, officer or Person exercising similar authority on behalf of the Company;
(xii) each outstanding power of attorney on behalf of the Company;
(xiii) each Contract (or series of related agreementsContracts) for capital expenditures in excess of $50,000;
(xiv) each Contract that evidences, secures or relates to Indebtedness or creates any Encumbrance on any assets of the Company;
(xv) each Contract that provides for a loan or advance to, or an investment in, or a guarantee of any obligations of, any Person by the Company;
(xvi) each Contract providing for (A) an increased payment or benefit or accelerated vesting upon the Closing or in connection with the Transactions or (B) any other severance, retention, change in control, incentive pay (including any option agreementbonus or commission) or other similar payment or benefit;
(xvii) each Contract with (A) any Independent Contractor providing for annual compensation in excess of $50,000, relating (B) any Employee (other than for employment offer letters on the form previously provided by the Seller to the Buyer) and (C) any Employee for an employment offer letter providing for annual compensation in excess of $100,000;
(xviii) each Contract with any temporary employment agency, leasing agency, staffing agency, labor contractor, professional employer organization or similar service provider;
(xix) each Contract that relates to the acquisition or disposition of any business business, Equity or real property (whether by mergerassets of the Company or any other Person, sale including each Contract granting any Person an option, right of stockfirst refusal, sale right of assets first offer or otherwise) for aggregate consideration similar preferential right to purchase any of the foregoing, in excess of $2,000,000each case, as to which the Company has continuing obligations or rights or pursuant to which the Company has employed, retained or has any liability to, any broker, agent or finder;
(vixx) any material agreement with (A) any Person directly each Contract containing or indirectly owningproviding for a warranty, controlling guaranty or holding with power to vote, 5% or more of other similar undertaking by the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage Company or the manner Business with respect to products, services or locations contractual performance, in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreementeach case, other than such agreements entered into in the ordinary course of business;
(xxi) each Contract that is, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed (including subcontractor arrangements), with or provided an indemnity in respect for the benefit of any liabilities, obligations or commitments of GFI Governmental Body or any GFI Subsidiary Person that is owned or (B) GFI or controlled by any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000Governmental Body;
(xxxii) any each Contract, other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under than ordinary course customer contracts, not terminable by the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of DeliveryCompany without penalty on less than 90 days’ notice;
(xixxiii) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement each Contract, other than ordinary course customer contracts, that involves expenditures annual consideration, whether payment or receipts of GFI receipt by the Company, the Seller or any GFI Subsidiary their Affiliate, in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent 75,000 in respect of the Business or that requires performance by any party thereto for more than one year following the Closing Date, which, in each case, is not otherwise required to be listed on Schedule 3.11(a); and
(xxiv) each Contract that constitutes a Material Adverse EffectShared Contract which, in each case, is not otherwise required to be listed on Schedule 3.11(a).
(b) The agreementsSeller has delivered to the Buyer a true, commitments, arrangements correct and plans, whether complete copy of each written Material Contract (including any amendments or oral, listed or required supplements thereto) and a written summary setting forth the material terms and conditions of each oral Material Contract (if any). Each Material Contract is in full force and effect and will continue to be listed in Section 2.19(a) so on identical terms following the Closing Date. Each Material Contract is the legal, valid and binding obligation of the GFI Disclosure Letter together with Company, the GFI License Agreements are referred to herein Seller or the Seller’s Affiliate, as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiariesapplicable, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFIthe Seller, no any other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may bethereto, enforceable against each of them in accordance with its terms, except subject to Enforceability Exceptions. Neither the Company, the Seller or the Seller’s Affiliate, as may be limited by applicable bankruptcyapplicable, insolvencynor, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFIthe Seller, any other party thereto, is in breach of or default under any Material Contract, and to the Knowledge of the Seller, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each casecircumstance exists that, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect would reasonably be expected to GFI constitute a breach or default under, or permit termination, modification or acceleration of, any Material Contract. Neither the Company, the Seller or the GFI SubsidiariesSeller’s Affiliate, as applicable, andnor any other party to any Material Contract has exercised (or, to the Knowledge of GFIthe Seller, intends to, or has expressed an intention to, exercise) any termination rights with respect to any Material Contract or has breached or refused to comply with any provision of any Material Contract. None of the other parties theretoCompany, and have been delivered the Seller or made available the Seller’s Affiliate has received any notice to Parentterminate, in whole or part, materially amend or not renew any obligation of any party to any Material Contract.
Appears in 1 contract
Sources: Equity Purchase Agreement (FiscalNote Holdings, Inc.)
Contracts. (a) Except for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a5.13(a) of the GFI Sellers' Disclosure LetterSchedule sets forth a true, neither GFI nor correct and complete list of each of the following Contracts to which the Company, the Sub S Holding Corporation or any GFI Subsidiary is a party to or by which the Company, the Sub S Holding Corporation or any Subsidiary or its assets or properties are bound by(collectively, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:
the "Other Contracts"); provided that Other Contracts shall not include (i) any agreement Contract relating to Indebtedness;
the provision of professional services by the Company, the Sub S Holding Corporation or any Subsidiary covered in Section 5.12, or (ii) any contracts under which GFI or any of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess of $500,000;
(iii) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(v) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) Contract for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements goods and services entered into in the ordinary course of business, consistent with past practice, which is terminable on no more than thirty (30) days' notice and involves payments of no more than $10,000 per month or $100,000 in the aggregate:
(i) each employment or other similar Contract providing for compensation, severance or a fixed term of employment in respect of services performed by any employee of the Company, the Sub S Holding Corporation or any Subsidiary;
(a) each management, consulting, retainer or other similar type of Contract under which (A) services are provided by any Person to the Company, the Sub S Holding Corporation or any Subsidiary in excess of $100,000 per annum and (b) each Contract for services and supplies provided by any other Person to the Company, the Sub S Holding Corporation or any Subsidiary;
(iii) each Contract that restricts in any manner the operation of the Business as presently conducted, including each Contract that restricts the ability of the Company, the Sub S Holding Corporation or any Subsidiary to solicit clients, employees or other service providers;
(iv) each Contract with any Seller or Affiliated Person thereof;
(v) each lease (as lessor, lessee, sublessor or sublessee) of any real property;
(vi) each lease (as lessor, lessee, sublessor or sublessee) of any tangible personal property requiring aggregate payments during its term or any extension or renewal thereof in excess of $100,000;
(vii) each license (as licensor, licensee, sublicensor or sublicensee) of any intellectual property rights (other than GFI customary, non-negotiated licenses of commercially available, "packaged, off the shelf" computer software);
(viii) each Contract under which any money has been or a GFI Subsidiarymay be borrowed or loaned, and each note, bond, factoring agreement, indenture or other evidence of indebtedness has been issued or assumed, and each guaranty (including "take-or-pay" and "keepwell" arrangements) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilitiesevidence of indebtedness or other obligation, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilitiesthe net worth, obligations or commitments of any Person;
(ix) each mortgage, deed of trust, security agreement, purchase money agreement, conditional sales contract or capital lease or other Person (other than GFI Contract that creates an encumbrances on any material property or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000asset;
(x) any other agreement each partnership, joint venture or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Deliverysimilar Contract;
(xi) any agreement under which GFI each Contract containing restrictions with respect to the payment of dividends or other distributions in respect of the Company's, the Sub S Holding Corporation's or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights)Subsidiary's capital stock or other ownership interests;
(xii) any agreement that involves each Contract to make unpaid capital expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year100,000;
(xiii) any material agreement with any Governmental Entityeach Contract containing a change of control or acceleration of performance provision;
(xiv) each Contract with respect to any material agreement between or among Affiliates of GFIZC Intellectual Property;
(xv) any Lease for the GFI Leased Real Propertyeach broker's, and any finder's or other similar retainer agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Propertyengagement letter; orand
(xvi) any agreement each other Contract having an indefinite term or a fixed term of more than one (1) year. True, correct and complete copies of all written Other Contracts required to be disclosed pursuant to this Section 5.13(a) have been previously delivered to Buyer. All of the termination or breach of which or the failure to obtain consent Other Contracts are in respect of constitutes a Material Adverse Effectwritten form and there are no oral Other Contracts.
(b) The agreementsOther Contracts are legal, commitmentsvalid, arrangements binding and plansin full force and effect and are enforceable by the Company, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI Sub S Holding Corporation or a GFI Subsidiary, as the case may be, enforceable in accordance with its their respective terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer moratorium and other similar laws affecting the rights of general applicability relating to or affecting creditors’ rights or creditors generally and by general equity principlesprinciples of equity. Except as set forth in Section 5.13(b) of the Sellers' Disclosure Schedule, neither the Company, the Sub S Holding Corporation nor any Subsidiary is (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or the lapse of time or the giving of notice, or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI breach of or in default under any of the GFI Subsidiaries, as applicableOther Contracts, and, to the Knowledge knowledge of GFIany Seller, the Company, the Sub S Holding Corporation or any Subsidiary, no other party to any of the Other Contracts is (with respect to or without the other parties theretolapse of time or the giving of notice, and have been delivered or made available to Parentboth) in breach of or in default under any of the Other Contracts.
Appears in 1 contract
Sources: Purchase Agreement (Kroll Inc)
Contracts. (a) Except for this AgreementAttached as SCHEDULE 2.11 is a true and correct list of all contracts, agreements and other instruments to which the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) of the GFI Disclosure Letter, neither GFI nor any GFI Subsidiary Company is a party to under which the aggregate liability of, or bound by, nor are any of their respective assets, businesses or operations party benefit to, or bound or affected bythe Company could reasonably be expected to exceed $1,000.00, or receive benefits under:including without limitation contracts, agreements and other instruments concerning the following matters (collectively the "Company Agreements"):
(i) the lease (as lessee or lessor) or license (as licensee or licensor) of any agreement relating to Indebtednessreal or personal property (tangible or intangible);
(ii) the employment, termination, severance or engagement of or with respect to any contracts under which GFI officer, director, employee, consultant or any of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess of $500,000agent;
(iii) any material joint venturearrangement between or among the Company, partnershipits affiliates, limited liability companythe Shareholders, shareholderany director, officer or other similar agreements or arrangements relating to the formationemployee thereof and/or related persons, creationincluding without limitation loans, operation, management or control of any partnership, strategic alliance or joint ventureguarantees and credit arrangements;
(iv) any material agreement relating arrangement limiting the freedom of the Company to compete in any strategic alliance, joint development, joint marketing, partnership manner in any line of business or similar arrangementrequiring the Company to share profits;
(v) any agreement or series of related agreementsarrangement that could reasonably be anticipated to have a material adverse effect on the Company, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets financial or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more arrangement not in the ordinary course of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiarybusiness;
(vii) any agreement (including any exclusivity agreement) that purports power of attorney, whether limited or general, granted by or to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI SubsidiaryCompany;
(viii) any agreement with other arrangement that requires performance for a non-solicitation period of more than 30 days or “most-favored-nations” pricing provision that purports to limit or restrict requires payments in any material respect GFI or any GFI Subsidiaryexcess of $1,000.00;
(ix) any loan agreement, contract or other arrangement relating to the borrowing of money by the Company and the amount outstanding thereunder or the guarantee by the Company of any third party obligation;
(x) any agreement or arrangement involving intellectual property rights (other than such agreements contracts entered into in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent business with industry practicecustomers and "shrink-wrap" software licenses), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI contract or arrangement relating to the provision of data processing, network communication or other technical services to or by the Company or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);affiliate thereof; and
(xii) any agreement that involves expenditures contract or receipts arrangement relating to the provision, purchase or sale of GFI goods or any GFI Subsidiary services, other than contracts entered into in the ordinary course of business and involving payments not in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effect1,000.00.
(b) The agreementsExcept as set forth on SCHEDULE 2.11, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a(a) of the GFI Disclosure Letter together with the GFI License Company Agreements are referred to herein as the “GFI Contracts.” Except as would valid and effective in accordance with their terms, and (b) there is not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, under any Company Agreement (i) neither GFI nor any GFI Subsidiary existing or claimed default by the Company or (ii) to the knowledge of the Company and the Shareholders, any existing or claimed default by any other party. There is andno actual or, to the Knowledge knowledge of GFIthe Company and the Shareholders, threatened termination, cancellation or limitation of any Company Agreements. To the knowledge of the Company and the Shareholders, there is no other party is, in breach pending or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable threatened bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and insolvency or similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect proceeding with respect to GFI or the GFI Subsidiaries, as applicable, and, any other party to the Knowledge of GFI, with respect to the other parties thereto, and have been delivered or made available to ParentCompany Agreements.
Appears in 1 contract
Contracts. (a) Except for this AgreementThe Company has made available to Parent and its representatives true, the CME Merger Agreement correct and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) complete copies of all of the GFI Disclosure Letter, neither GFI nor any GFI Subsidiary following contracts to which the Company is a party to or by which it is bound by(collectively, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:
the "Material Contracts"): (i) contracts with any agreement relating to Indebtedness;
current officer or director of the Company or with any Person owning, beneficially or otherwise, more than 10% of the Company Shares outstanding as of the date of this Agreement; (ii) any contracts under pursuant to which GFI the Company licenses or sublicenses other Persons to use Intellectual Property and pursuant to which other Persons license or sublicense the Company to use Intellectual Property; (iii) contracts (A) for the sale of any of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess of $500,000;
(iii) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(v) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreementCompany, other than such agreements contracts entered into in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary business or (B) GFI for the grant to any Person of any preferential rights to purchase any of its assets; (iv) contracts which restrict the Company from competing in any line of business or with any GFI Subsidiary has directly Person in any geographical area or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of which restrict any other Person from competing with the Company in any line of business or in any geographical area; (other than GFI v) contracts which restrict the Company from disclosing any information concerning or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) obtained from any other agreement Person or amendment thereto that would be required which restrict any other Person from disclosing any information concerning or obtained from the Company; (vi) indentures, credit agreements, security agreements, mortgages, guaranties, promissory notes and other contracts relating to be filed the borrowing of money; (vii) contracts which account, or which are expected to account, for more than 5% of the consolidated revenues of the Company during its most recent fiscal year and its current fiscal year; and (viii) all other agreements, contracts or instruments entered into outside of the ordinary course of business or which are material to the Company. Except as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference specified in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real PropertyCompany Disclosure Schedule, and any other agreement that relates in any way to the occupancy or use of any all of the GFI Leased Real Property; or
(xvi) any agreement Material Contracts are in full force and effect and are the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effect.
(b) The agreementslegal, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement obligation of GFI or a GFI Subsidiary, as the case may beCompany, enforceable against it in accordance with its their respective terms, except as may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer moratorium and similar laws of general applicability relating to or affecting creditors’ ' rights or by and remedies generally and subject, as to enforceability, to general principles of equity principles, (iii) to the Knowledge regardless of GFI, no event has occurred which would result whether enforcement is sought in a proceeding at law or in equity). Except as specified in the Company Disclosure Schedule, the Company is not in breach or violation of, or a default under, in any GFI material respect under any Material Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or the GFI Subsidiaries, as applicable, andnor, to the Knowledge of GFIthe Company, with respect is any other party to the other parties thereto, and have been delivered any Material Contract in breach or made available to Parentdefault thereunder in any material respect.
Appears in 1 contract
Sources: Merger Agreement (Medgrup Corp)
Contracts. (a) Except for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract as set forth in on Section 2.19(a) 2.19 of the GFI Disclosure LetterSchedule, neither GFI the Company nor any GFI Subsidiary of its Subsidiaries is a party to or bound by, nor are any of their respective assets, businesses properties or operations party to, or of the Company and of its Subsidiaries bound or affected by, any written or receive benefits underoral obligations of the Company or any of its Subsidiaries:
(ia) any agreement relating Contractual Obligation (or group of related Contractual Obligations) for lease of property, real or personal, to Indebtedness;
(ii) any contracts under which GFI or any of the GFI Subsidiaries has advanced or loaned from any Person any amounts providing for lease payments in excess of $500,00050,000 on annual basis;
(iiib) any material joint ventureContractual Obligation (or group of related Contractual Obligations) for the purchase or sale of raw materials, partnershipcommodities, limited liability companysupplies, shareholderproducts, or other similar agreements personal property, or arrangements 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 excess of $50,000;
(c) any Contractual Obligation with any franchisee, dealer or other distributor or other provider of financing to any franchisee, dealer or distributor (including any such Contractual obligation which involves any obligation or understanding that the Company or any of its Subsidiaries shall repurchase inventory in specified circumstances);
(d) any Contractual Obligation relating to the formation, creation, operation, management or control making of any partnershipinvestment in or any loan to, strategic alliance or to the acquisition of any securities or assets of, or to the merger or combination with or acquisition of, any other Person (other than purchases of inventory in the Ordinary Course of Business);
(e) any Contractual Obligation concerning a partnership or joint venture;
(ivf) any material agreement relating to Contractual Obligation under which it has created, incurred, assumed, or guaranteed any strategic allianceIndebtedness or under which there is imposed a Lien on any of its assets, joint development, joint marketing, partnership tangible or similar arrangementintangible;
(vg) any agreement Contractual Obligation concerning confidentiality, noncompetition or series of related agreementsany restriction on carrying on any business or activity;
(h) any license, indemnification or other Contract with respect to any intangible property (including any option Intellectual Property);
(i) any warranty with respect to its services rendered or its products sold, leased or licensed which contains terms and conditions that differ in any material respect from the Company's standard warranty terms and conditions or any other Contractual Obligation under which it is obligated to indemnify against product liability claims;
(j) any Contractual Obligation involving any commitment of suretyship, guaranty of any Liability or indemnification by the Company or its Subsidiaries or any power of attorney;
(k) any Contractual Obligation related to hazardous waste disposal, solid waste disposal, wastewater management, investigation of environmental matters, environmental remediation, employment of environmental consultants, or any other environmental obligation, liability or agreement, ;
(l) any Contractual Obligations relating to the acquisition or disposition sale of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000assets;
(vim) any material agreement with (A) pension, profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or arrangement for the benefit of any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any its current or former director directors, officers or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiaryemployees;
(viin) any collective bargaining agreement or other Contractual Obligation with any labor union, or severance agreements, programs, policies or arrangements; (including o) management agreement or other Contractual Obligation for the employment of any exclusivity agreement) that purports to limit officer, individual employee or restrict in other Person on a full time, part-time or consulting basis or providing for the payment of any cash or other compensation or benefits upon the sale of all or a material respect either portion of the type assets of business in which GFI the Company or any GFI Subsidiary may engage or the manner or locations in which any a change of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements entered into in the ordinary course of business, under which (A) any Person control (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI at-will employment agreements with its employees which do not commit the Company or any GFI Subsidiary to severance, termination or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rightssimilar payments);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effect.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or the GFI Subsidiaries, as applicable, and, to the Knowledge of GFI, with respect to the other parties thereto, and have been delivered or made available to Parent.
Appears in 1 contract
Sources: Securities Purchase Agreement (Swissray International Inc)
Contracts. (a) Except for this Agreement, the CME Merger Agreement Schedule 4.9 contains a complete and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) accurate list of each of the GFI Disclosure Letter, neither GFI nor any GFI Subsidiary is a party to or bound by, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits underfollowing Contracts:
(i) agreements or instruments imposing an Encumbrance on any agreement relating to Indebtednessof the Assets, other than those constituting Permitted Encumbrances;
(ii) any contracts under which GFI Contracts relating to indebtedness, liability for borrowed money or the deferred purchase price of property (excluding trade payables in the ordinary course of business) or any guarantee or other contingent liability in respect of the GFI Subsidiaries has advanced any indebtedness or loaned obligation of any Person any amounts (other than the endorsement of negotiable instruments for collection in excess the ordinary course of $500,000business);
(iii) any material joint ventureexcept with respect to Loans made in the ordinary course of the Company's mortgage banking business, partnership, limited liability company, shareholderLoans or advances to, or other similar agreements or arrangements investments in, any Person, any Contracts relating to the formation, creation, operation, management or control making of any partnershipsuch loans, strategic alliance advances or joint ventureinvestments or any Contracts involving a sharing of profits;
(iv) Contracts that contain restrictions with respect to payment of dividends or any material agreement relating to other distribution in respect of the capital stock of the Company or any strategic alliance, joint development, joint marketing, partnership or similar arrangementSubsidiary;
(v) any agreement letters of credit or series of related agreements, including any option agreement, similar arrangements relating to the acquisition Company or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000Subsidiary;
(vi) any material agreement employment agreements with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more employee of the outstanding voting securities of GFI Company or any GFI Subsidiary, (B) Subsidiary or other person on a full-time or consulting basis providing for an annual compensation in excess of $50,000 or providing for the payment of any Person 5% cash or more other compensation upon the sale of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI Company or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including management, consulting or advisory agreements, or severance plans or arrangements for any exclusivity agreement) that purports to limit present or restrict in any material respect either former employee of the type of business in which GFI Company or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “mostdisclosure agreements and non-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI compete agreements binding present and former employees of the Company or any GFI Subsidiary;
(ix) any agreement under which the Company or any Subsidiary is lessee of or holds or operates any real property or any personal property for which the annual rental exceeds $25,000;
(x) any agreement under which the Company or any Subsidiary is lessor of or permits any third party to hold or operate any property, real or personal, for which the annual rental exceeds $25,000;
(xi) any agreement or group of related agreements between the Company or any Subsidiary and the same party for the sale or purchase of products or services under which the undelivered balance of such products and services has a price in excess of $50,000, except for Loans in the ordinary course of the Company's mortgage banking business;
(xii) any other agreement or group of related agreements between the Company or any Subsidiary and the same party continuing over a period of more than six months from the date or dates thereof, not terminable by it on 30 days' or less notice without penalty and involving more than $50,000;
(xiii) any agreement relating to the acquisition or divestiture of the capital stock or equity securities, assets or business of any Person, the Company or any Subsidiary involving consideration in excess of $50,000 or pursuant to which the Company or any Subsidiary has any liability, contingent or otherwise;
(xiv) any powers of attorney granted by or on behalf of the Company or any Subsidiary (including those granted to customs brokers) and other agency agreements but excluding powers of attorney granted to Investors, warehouse lenders and custodians in the ordinary course of the Company's mortgage banking business;
(xv) any agreement, other than such agreements entered into in the ordinary course of the Company's mortgage banking business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI prevents the Company or any GFI Subsidiary from disclosing confidential information or (B) GFI which prohibits the Company or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity from freely engaging in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference business anywhere in the GFI SEC Documents filed prior to the Date of Deliveryworld;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any sales distribution agreements, franchise agreements and advertising agreements relating to the Company or any Subsidiary;
(xvii) any warranty, guaranty or other similar undertaking with respect to a contractual performance extended by the Company or any Subsidiary, other than in the ordinary course of the Company's mortgage banking business;
(xviii) any agreement pursuant to which the termination Company or breach any Subsidiary has agreed to defend, indemnify or hold harmless any other Person other than in the ordinary course of the Company's mortgage banking business;
(xix) any agreement pursuant to which the Company or any Subsidiary has agreed to settle any liability for Taxes;
(xx) any agreement pursuant to which the failure Company or any Subsidiary has agreed to obtain consent in respect shift or allocate the liability of constitutes a Material Adverse Effectthe Company, any Subsidiary or any other Person for Taxes; and
(xxi) any other agreement material to the Company or any Subsidiary.
(b) The agreementsCompany has delivered to the Purchaser a true and complete copy of each written arrangement listed on Schedule 4.9, commitments, arrangements and plans, whether as amended to date. With respect to each written or oral, listed or required to be arrangement so listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, clauses (i) neither GFI nor any GFI Subsidiary is andthrough (v) below, to the Knowledge of GFI, no other party is, extent that it could reasonably be expected to have a Material Adverse Effect on the Company and the Subsidiaries taken as a whole: (i) the written arrangement is in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract full force and effect and is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to ; (ii) neither the Company nor any Subsidiary is in breach or affecting creditors’ rights or by general equity principles, default thereof; (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each casewhich, with or without notice notice, or lapse of time or both), and would constitute a breach or default thereof by the Company or any Subsidiary or constitute a breach or default thereof by any other party thereto (iv) each GFI Contract no event has occurred that would permit termination, modification, or acceleration thereof by any other party thereto; and (including v) neither the Company nor any Subsidiary has repudiated and no other party thereto has repudiated or acted in a manner inconsistent with any provision thereof. The Contracts constitute all modifications of the contracts necessary to conduct all operations of the Company as they are currently conducted except where the lack of the Contracts would not be reasonably expected to have Material Adverse Effect on the Company and amendments thereto and waivers thereunder) the Subsidiaries taken as a whole. Neither the Company nor any Subsidiary is in full force and effect with respect a party to GFI any verbal contract, agreement, or other arrangement which, if reduced to written form, would be required to be listed on Schedule 4.9 under the GFI Subsidiaries, as applicable, and, to the Knowledge terms of GFI, with respect to the other parties thereto, and have been delivered or made available to Parentthis Section 4.9.
Appears in 1 contract
Sources: Merger Agreement (American Home Mortgage Holdings Inc)
Contracts. (a) Except for this AgreementItem 4.16 of the Company Letter lists the following Contracts to which, as of the date hereof, the CME Merger Agreement and Company or any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) of the GFI Disclosure Letter, neither GFI nor any GFI Subsidiary its Subsidiaries is a party to or bound by, nor are by which any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:
them is bound: (i) any agreement relating Contract that is filed or would be required to Indebtedness;
be filed by the Company as a material contract pursuant to Item 601(b)(10) of Regulation S-K of the SEC (other than compensatory Contracts with, or which includes as participants, any current or former director or officer of the Company or any of its Subsidiaries); (ii) any contracts under which GFI indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or any other evidence of the GFI Subsidiaries has advanced or loaned any Person any amounts Indebtedness, providing for borrowings (constituting Indebtedness) in excess of $500,000;
25 million; (iii) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements Contract relating to the creation, formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
Specified Alliance; (iv) any material agreement relating Contract which contains provisions that prohibit the Company or any of its Subsidiaries from competing in any line of business, which provisions would, after the Effective Time, in addition to any strategic allianceapplying to the Company and its Subsidiaries, joint development, joint marketing, partnership or similar arrangement;
also purport to apply to the Parent and its Affiliates (other than the Company and its Subsidiaries); (v) any agreement Contract that prohibits the payment of dividends or series distributions in respect of related agreementsthe capital stock of the Company or any of its Subsidiaries, including prohibits the pledging of the capital stock of the Company or any option agreement, relating to Subsidiary of the acquisition Company or disposition prohibits the issuance of guarantees by any business or real property (whether by merger, sale Subsidiary of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
the Company; (vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
Material Revenue Producing Contract and (vii) any agreement Material Revenue Producing Contract with respect to which the entry into this Agreement or the consummation of the transactions contemplated by this Agreement, would result in a breach of, or constitute (including with or without due notice or lapse of time or both) a default (or give rise to any exclusivity agreementright of termination amendment, cancellation or acceleration) under, or result in a loss of a benefit under, such Material Revenue Producing Contract. Each such Contract described in clauses (i) through (vii) that purports is not terminable by the other party or parties thereto on 180 days’ or less notice is referred to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with herein as a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements entered into in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse EffectContract.”
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not not, individually or in the aggregate, reasonably be expected to have a material impact Material Adverse Effect on the respective businesses of GFI and the GFI SubsidiariesCompany, (i) neither GFI the Company nor any GFI Subsidiary is andhas received any written notice or claim of default under any Material Contract or any written notice of an intention to terminate, to not renew or challenge the Knowledge validity or enforceability of GFI, no other party is, in breach or violation of, or in default under, any GFI Material Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each casethat, with or without notice or lapse of time or both), and would result in a breach or a default by the Company or any of its Subsidiaries under any Material Contract, (iviii) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) of the Material Contracts is in full force and effect with respect to GFI or the GFI Subsidiaries, as applicable, and, to the Knowledge of GFIthe Company, with respect to is the valid, binding and enforceable obligation of the other parties theretothereto (except that such enforceability (A) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting or relating to the enforcement of creditors’ rights generally and (B) is subject to general principles of equity (regardless of whether considered in a proceeding in equity or at law)) and (iv) the Company and its Subsidiaries have been delivered performed all respective material obligations required to be performed by them to the date hereof under the Material Contracts and are not (with or made available to Parentwithout the lapse of time or the giving of notice, or both) in material breach thereunder.
Appears in 1 contract
Sources: Merger Agreement (First Data Corp)
Contracts. (a) Except for this Agreement, the CME Merger Agreement The Disclosure Schedule contains a true and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) complete list of the GFI Disclosure Letterfollowing written contracts, neither GFI nor agreements, leases and other instruments to which any GFI Subsidiary of the Companies is a party to or bound by, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:(“Material Contracts”):
(i) Contracts for the employment of any agreement relating to Indebtednessemployee or engagement of any contractor or consultant of the Companies that (A) provides for base compensation in excess of $150,000, (B) provides for the payment and/or accelerated vesting of any compensation or benefits upon the consummation of the transactions contemplated by this Agreement, or (C) cannot be terminated at-will at any time for any reason or no reason without penalty or liability;
(ii) contracts with any contracts under which GFI former (to the extent of any ongoing Liability) or any current employee, officer, director or other individual service provider of the GFI Subsidiaries has advanced Business and that (A) provides for (1) total annual compensation that could exceed $100,000, (2) any severance benefits, or loaned (3) any Person payments or obligations that could be triggered solely by the consummation of the transactions contemplated by this Agreement; or (B) cannot be terminated upon thirty (30) days’ notice or less without any amounts in excess of $500,000Liability or obligation;
(iii) any material joint ventureleases or subleases, partnershipeither as lessee or sublessee, limited liability companylessor or sublessor, shareholderof personal property or intangibles, where the lease or other similar agreements or arrangements relating to sublease provides for an annual rent in excess of $150,000 and has an unexpired term as of the formation, creation, operation, management or control Closing Date in excess of any partnership, strategic alliance or joint ventureone (1) year;
(iv) contracts that materially limit the ability of any of the Companies to compete in any material agreement relating to respect with any strategic alliancePerson generally, joint development, joint marketing, partnership engage in any line of business or similar arrangementconduct of business in any geographic area;
(v) any agreement loan or series of related credit agreements, pledge agreements, notes, security agreements, mortgages, debentures, indentures, factoring agreements or letters of credit;
(vi) contracts with any Significant Customer or Significant Supplier, other than purchase orders entered into in the ordinary course of business;
(vii) contracts (other than purchase orders entered into in the ordinary course of business) involving performance of services or delivery of goods by any of the Companies of a stated amount in excess of $400,000;
(viii) contracts (other than purchase orders entered into in the ordinary course of business) that involves performance of services or delivery of goods to any of the Companies of a stated amount in excess of $400,000 during any twelve (12)-month period after the date of this Agreement;
(ix) any other agreement which provides for the receipt or expenditure by the Companies of more than $200,000 in any single year and has an unexpired term of more than one year that cannot be terminated without penalty, except purchase orders for the purchase or sale of goods or rendering of services in the ordinary course of business.
(x) contracts involving capital expenditures after the date of this Agreement requiring the Seller to pay in excess of $200,000 in any calendar year;
(xi) partnership agreements or joint venture agreements involving expenditures or receipts of greater than $100,000;
(xii) any contract that is a settlement, conciliation or similar agreement (including with any option agreement, Governmental Authority) or pursuant to which the Companies will have any material outstanding obligation after the date of this Agreement;
(xiii) any Labor Agreement;
(xiv) contracts relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000within the past three (3) years or under which, after the Closing, the Companies will have an obligation with respect to any “earn out” or contingent payment obligation or other contingent obligation or deferred purchase price payment obligation, indemnification obligation or non-competition provision;
(vixv) any material agreement with (A) power of attorney executed by or on behalf of any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI SubsidiaryCompanies;
(viixvi) contracts containing minimum requirements, “take-or-pay” provisions, exclusivity, “most favored nation,” rebate, volume-based discount or other pricing clauses or other similar contractual language;
(xvii) contracts relating to the creation, incurrence, assumption or guarantee of any indebtedness or placing a lien on any of the assets of any of the Companies;
(xviii) any agreement (including any exclusivity agreementw) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in Contract under which any of them may so engage in the Companies have granted a license or right to any business or could require the disposition of other Person to use any material assets or line of business of GFI or any GFI Subsidiary;
Owned Intellectual Property (viii) any agreement with a other than non-solicitation or “most-favored-nations” pricing provision that purports exclusive licenses granted to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements entered into customers in the ordinary course of business, ); (x) Contract under which any of the Companies is granted a license or right to use any Intellectual Property (other than (A) any Person (other than GFI inbound non-exclusive licenses of Intellectual Property involving an annual payment by the Seller of $175,000 or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary less or (B) GFI non-exclusive end-user licenses of generally commercially-available Software with a total replacement cost and with annual subscription or maintenance fees of less than $175,000) that is used solely for its internal business purposes and is not re-distributed with, bundled, integrated, or incorporated into any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect Company Software; (y) IP Settlement Agreements; and (z) Contract under which material Intellectual Property was developed by a third party for the benefit of liabilities, obligations or commitments of any other Person the Companies (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effect.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact Contracts on the respective businesses of GFI Companies’ form agreement made available to Purchaser). All Material Contracts are binding upon the Companies and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or the GFI Subsidiaries, as applicable, and, to the Knowledge of GFI, with respect to the other parties thereto, and have been delivered . None of the Companies or made available to Parentany of the other parties thereto are in material default under any Material Contract.
Appears in 1 contract
Contracts. (a) Except for this Agreement, With respect to each of the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth contracts listed in Section 2.19(a4(m) of the GFI Disclosure LetterSchedule: (A) the agreement is legal, valid, binding, enforceable, and in full force and effect in all material respects as to the Company and APS-Cal, as the case may be; (B) none of the Company, APS-Cal or to the Knowledge of the Seller Entities, any other party is in material breach or default, and no event has occurred which with notice or lapse of time would constitute a material breach or default, or permit termination, modification, or acceleration, under the agreement; and (C) neither GFI APS-Cal nor the Company has, and to the Knowledge of the Seller Entities, no other party has repudiated any GFI Subsidiary material provision of the agreement and (D) correct and complete copies of the agreement have been provided or made available to the Buyer. Section 4(m) of the Disclosure Schedule lists all of the contracts to which the Company or APS-Cal is a party to or bound by, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits underthe type described below:
(i) any agreement relating (or group of related agreements) for the lease of real or personal property to Indebtednessor from any Person providing for lease payments in excess of $50,000 per annum;
(ii) any contracts under agreement (or group of related agreements) for the purchase or sale of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which GFI will extend over a period of more than one (1) year or any of the GFI Subsidiaries has advanced or loaned any Person any amounts involve consideration in excess of $500,00050,000;
(iii) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance agreement concerning a partnership or joint venture;
(iv) any material agreement relating to (or group of related agreements) under which the Company has created, incurred, assumed, or guaranteed any strategic allianceindebtedness for borrowed money, joint developmentor any capitalized lease obligation, joint marketingin excess of $50,000 or under which it has imposed a Security Interest on any of its assets, partnership tangible or similar arrangementintangible;
(v) any agreement concerning confidentiality not entered into in the Ordinary Course of Business or series any agreement which involves any prohibition on the Company conducting business in a geographical area or performing any service or restricts the Company's ability to operate in the Ordinary Course of related agreements, including Business or grants to any option agreement, relating party thereto other than the Company or APS-Cal the exclusive right to the acquisition or disposition of perform any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000service;
(vi) any material agreement with (A) any Person directly a Seller Entity or indirectly owning, controlling or holding with power to vote, 5% or more another Affiliate of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI SubsidiaryCompany;
(vii) any agreement (including any exclusivity agreement) that purports to limit profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or restrict in any material respect either other plan or arrangement for the type benefit of business in which GFI its current or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiaryformer directors, officers, and employees;
(viii) any collective bargaining agreement or agreement with a non-solicitation labor union or “most-favored-nations” pricing provision that purports other association representing or purporting to limit or restrict in any material respect GFI or any GFI Subsidiaryrepresent a group of employees;
(ix) any agreement, other than such agreements entered into in agreement for the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect employment of any liabilitiesindividual on a full-time, obligations part-time, consulting, or commitments other basis providing annual compensation in excess of GFI $100,000 or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000providing material severance benefits;
(x) any other agreement with any officer or amendment thereto that would be required to be filed as an exhibit director of the Company or APS-Cal, including without limitation, any agreement under which it has advanced or loaned any amount to any GFI SEC Document (as described in Items 601(b)(4) of its directors, officers, and 601(b)(10) employees outside the Ordinary Course of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of DeliveryBusiness;
(xi) any agreement under which GFI the consequences of a default or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights)termination could have a Material Adverse Effect on the Company;
(xii) any other agreement that (or group of related agreements) the performance of which involves expenditures or receipts of GFI or any GFI Subsidiary consideration in excess of $3,000,000 50,000 in the aggregate per year;
aggregate; (xiii) any material xiii)Any agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which requiring capital expenditures or the failure to obtain consent disposal or acquisition of assets in respect excess of constitutes a Material Adverse Effect.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or the GFI Subsidiaries, as applicable, and, to the Knowledge of GFI, with respect to the other parties thereto, and have been delivered or made available to Parent.$50,000;
Appears in 1 contract
Contracts. (a) Except for this Agreement, Schedule 4.15(a) lists the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) of the GFI Disclosure Letter, neither GFI nor any GFI Subsidiary following Contracts to which Brookwood is a party to or bound by, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits underparty:
(i) any agreement relating Contract (or group of related Contracts) for the lease of personal property to Indebtednessor from any Person providing for lease payments in excess of $25,000 per annum;
(ii) any contracts under Contract (or group of related Contracts) for the purchase or sale of personal property, or for the furnishing or receipt of services, the performance of which GFI will extend over a period of more than one year or any of the GFI Subsidiaries has advanced or loaned any Person any amounts involve consideration in excess of $500,00025,000;
(iii) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance Contract concerning a partnership or joint venture;
(iv) any material agreement relating to Contract (or group of related Contracts) under which Brookwood has created, incurred, assumed, or guaranteed any strategic allianceindebtedness for borrowed money, joint developmentor any capitalized lease obligation, joint marketingin excess of $25,000 or under which it has imposed a Lien on any of its assets, partnership tangible or similar arrangementintangible;
(v) any agreement Contract concerning confidentiality or series non-competition other than non-disclosure agreements entered into in the Ordinary Course of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000Business;
(vi) any material agreement Contract under which Brookwood is currently or potentially obligated to share revenues or income with any other Person (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI including SRI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiaryits Affiliates);
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI Contract with SRI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiaryits Affiliates;
(viii) any agreement with a non-solicitation profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or “most-favored-nations” pricing provision that purports to limit other plan or restrict in any material respect GFI Contract for the benefit of its current or any GFI Subsidiaryformer directors, officers, or employees;
(ix) any agreement, other than such agreements entered into in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000collective bargaining Contract;
(x) any Contract for the employment of any individual on a full-time, part-time, consulting, or other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Deliverybasis;
(xi) any agreement Contract under which GFI Brookwood has advanced or loaned any GFI Subsidiaries amount to any of its directors, officers, or employees outside the Ordinary Course of Business;
(xii) any Contract under which the consequences of a default or termination would have a Material Adverse Effect;
(xiii) any Contract under which Brookwood has granted any Person any registration rights (including demand and piggy-back piggyback registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between Contract (other than Contracts with customers in the Ordinary Course of Business) under which Brookwood has agreed to indemnify any other Person for any loss, expense or among Affiliates of GFILiability;
(xv) any Lease for the GFI Leased Real Property, and Contract under which Brookwood has advanced or loaned any other agreement that relates Person amounts in any way to the occupancy or use of any of the GFI Leased Real Propertyaggregate exceeding $25,000; or
(xvi) any agreement other Contract (or group of related Contracts), understanding or course of dealing that will require Brookwood to make any payment in excess of $25,000 after the termination or breach Closing (other than in the Ordinary Course of which or the failure to obtain consent in respect of constitutes a Material Adverse EffectBusiness).
(b) The agreements, commitments, arrangements SRI has delivered to SurModics a correct and plans, whether complete copy of each written or oral, listed or required Contract (as amended to be date) listed in Section 2.19(aSchedule 4.15(a) and a written summary setting forth the terms and conditions of the GFI Disclosure Letter together with the GFI License Agreements are each oral Contract referred to herein in Schedule 4.15(a). With respect to each such Contract, except as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, set forth in Schedule 4.15(b): (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiarylegal, as the case may bevalid, binding, enforceable in accordance with its terms, (except as that the enforcement thereof may be limited by applicable bankruptcythe Enforcement Limitations) and in full force and effect; (ii) the Contract will continue to be legal, insolvencyvalid, reorganizationbinding, moratoriumenforceable, fraudulent transfer (except that the enforcement thereof may be limited by the Enforcement Limitations) and similar laws in full force and effect on identical terms following the consummation of general applicability relating to or affecting creditors’ rights or by general equity principles, the Transactions; (iii) to the Knowledge of GFISRI’s Knowledge, no party is in material breach or default, and no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, that with or without notice or lapse of time would constitute a material breach or both)default, or permit termination, modification, or acceleration, under the Contract; and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or SRI’s Knowledge, no party has repudiated any provision of the GFI Subsidiaries, as applicable, and, to the Knowledge of GFI, with respect to the other parties thereto, and have been delivered or made available to ParentContract.
Appears in 1 contract
Contracts. (a) Except for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a3.12(a) of the GFI Disclosure Letter, neither GFI nor Schedule sets forth all of the Contracts to which the Company or any GFI Subsidiary of its Subsidiaries is a party to or bound by, nor are by which it or any of their respective assets, businesses or operations party to, or assets are bound or affected by, or receive benefits under:of the types described below and categorized accordingly (the “Material Contracts”):
(i) Contracts with any agreement relating to Indebtednessgrower, harvester or ▇▇▇▇▇▇;
(ii) Contracts for the warehousing or storage of any contracts under which GFI fruits, vegetables or food products, or for any of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess of $500,000Inventory;
(iii) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint ventureReal Property Leases;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangementPersonal Property Leases;
(v) Contracts relating to the employment or engagement of any agreement Person, or series any bonus, deferred compensation, pension, profit sharing, stock option, employee stock purchase, retirement, retention, severance, or change of related agreementscontrol arrangement;
(vi) Contracts other than those described in clause (i) with any current or former officer, including director or employee of the Company or any option agreementof its Subsidiaries, or any Affiliate of the Company or any of its Subsidiaries or any such Person;
(vii) Contracts with any employee or labor union or association representing any employee;
(viii) Contracts relating to capital expenditures;
(ix) Contracts entered into within the last five years relating to the acquisition or disposition of any business or real property (whether by mergerequity interests in or, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements entered into except in the ordinary course of business, assets of any Person;
(x) Contracts creating or otherwise related to any joint venture or partnership;
(xi) Contracts limiting the ability of the 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 or to solicit any Person for employment;
(xii) Contracts relating to the confidentiality or limitation on use of any information;
(xiii) Contracts relating to any Indebtedness 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 past custom and practice), including credit facilities, promissory notes, security agreements, and other credit support arrangements, and Contracts under which the Company or any of its Subsidiaries have imposed or incurred a Lien on any of their assets;
(Axiv) Contracts granting a power of attorney, revocable or irrevocable, to any Person for any purpose whatsoever;
(xv) Contracts that provide for the indemnification by the Company or any of its Subsidiaries of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(xvi) Contracts relating to any loan (other than accounts receivable from trade debtors in the ordinary and usual course of business consistent with past custom and practice) or advance to (other than ordinary course travel allowances to the employees of the Company or any of its Subsidiaries), or investments in, any Person;
(xvii) Contracts relating to any guarantee or other contingent Liability in respect of any Indebtedness or obligation of any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect the endorsement of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements negotiable instruments for the purpose of collection in a commercially reasonable manner the ordinary and usual course of business consistent with industry past custom and practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xiixviii) any agreement that involves expenditures or receipts of GFI all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which the Company or any GFI Subsidiary of its Subsidiaries is a party;
(xix) Contracts with any Governmental Body;
(xx) Contracts, loans and/or lease arrangements involving, directly or indirectly, any rebates, payments, commissions, promotional allowances or any other economic benefits, regardless of their nature or type, to or from any Affiliate or to or from any customer, supplier, employee or agent of the Company or any of its Subsidiaries; and
(xxi) all other Contracts (i) which are reasonably likely to involve the receipt or payment of an amount in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates 125,000 in any way to 12-month period or (ii) which 26 cannot be cancelled by the occupancy Company or use of any of the GFI Leased Real Property; or
its applicable Subsidiary without penalty and without more than ninety (xvi90) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effectdays’ notice.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or Complete copies of the items required to be listed set forth in Section 2.19(a3.12(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred Schedule have previously been provided to herein as the “GFI Contracts.” Purchaser by Sellers. Except as would not have a material impact on set forth in Section 3.12(b) of the respective businesses Disclosure Schedule, all of GFI the Contracts disclosed in Section 3.12(a) of the Disclosure Schedule shall, following the Closing, remain enforceable by the Company and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, its Subsidiaries subject to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid Enforceability and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or the GFI Subsidiaries, as applicableEquity Exceptions, and, to the Knowledge of GFISellers, with respect to binding on the other parties thereto, without the Consent of any Person. Neither the Company nor any of its Subsidiaries is in default, and have been delivered no event has occurred which, with the giving of notice or made available the passage of time or both, would reasonably be expected to Parentconstitute a default, under any such Contract or any other obligation owed by the Company or any of its Subsidiaries, and, to the Knowledge of Sellers, no event has occurred which, with the giving of notice or the passage of time or both, would reasonably be expected to constitute a default by any other party to any such Contract. Each of the Material Contracts disclosed in Section 3.12(a) of the Disclosure Schedule is in full force and effect, is valid and enforceable in accordance with its terms subject to the Enforceability and Equity Exceptions, and, to the Knowledge of Sellers, is not subject to any claims, charges, setoffs or defenses. There are no disputes pending or, to Sellers’ Knowledge, threatened under any such Contract. The Company, each of its Subsidiaries, and to the Knowledge of Sellers, each other party thereto is in material compliance with all of its obligations under each such Contract.
Appears in 1 contract
Sources: Stock Purchase Agreement (Fresh Del Monte Produce Inc)
Contracts. (a) Except for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(aSECTION 4.14(a) of the GFI Company Disclosure Letter, neither GFI nor Letter lists the following contracts to which any GFI Subsidiary of the Company or the Subsidiaries is a party to or bound by, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits underby which it is bound:
(i) any agreement relating contract (or group of related contracts) involving the performance of services or the purchase of goods, materials or other assets by or to Indebtednessthe Company or any of the Subsidiaries, the performance of which will involve (A) annual payments to or from the Company and the Subsidiaries of $250,000 or more, or (B) aggregate payments (including termination penalties) to or from the Company and the Subsidiaries of $1,000,000 or more;
(ii) any contracts contract concerning a partnership, limited liability company or joint venture;
(iii) any contract (or group of related contracts) under which GFI it has (x) created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $500,000 or (y) imposed an Encumbrance on any of its assets, tangible or intangible;
(iv) any contract concerning confidentiality or noncompetition or that limits or otherwise restricts the Company or any of the GFI Subsidiaries or that would, after the Effective Time, limit or restrict Parent, the Surviving Corporation or any of the Subsidiaries or any successor thereto or any of their respective Affiliates, from engaging or competing in any line of business or in any geographic area, including any contract containing any "radius clause" applicable to markets in which the Company has operations;
(v) any contract relating to collective bargaining or employee association;
(vi) any contract for the employment of any individual on a full-time, part-time, consulting, or other basis who is an officer or director of the Company or any of the Subsidiaries or any Affiliate of any of them, or that provides for annual compensation in excess of $100,000 or any severance benefits;
(vii) any contract under which the Company or any of the Subsidiaries has advanced or loaned any Person amount to any amounts of its directors, officers or employees;
(viii) any contract under which the consequences of a default or termination could reasonably be expected to have a Company Material Adverse Effect;
(ix) any other contract (or group of related contracts) the performance of which involves aggregate consideration in excess of (A) $500,000250,000 or more annually, or (B) $1,000,000 or more in the aggregate;
(iiix) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating contract that relates to any proposed Acquisition Proposal as to which discussions have not been terminated prior to the formationdate of this Agreement, creationincluding all commitments containing confidentiality, operationstandstill, management non-solicitation or control of any partnership, strategic alliance or joint venturesimilar provisions;
(ivxi) any material agreement relating contract to which the Company or any strategic alliance, joint development, joint marketing, partnership of the Subsidiaries has continuing indemnification obligations or similar arrangementpotential liability;
(vxii) any agreement contract providing for the sale or series of related agreementsexchange of, including or option to sell or exchange, any Property, or for the purchase or exchange of, or option agreementto purchase or exchange, relating to any real estate;
(xiii) any contract for the acquisition or disposition of any business disposition, directly or real property indirectly (whether by mergermerger or otherwise), sale of stock, sale of assets or otherwise) Equity Interests of another person for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning500,000, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, each case other than such agreements entered into in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between contract pursuant to which the Company or among Affiliates any of GFIthe Subsidiaries manages any real property;
(xv) any Lease advertising or other promotional contract providing for payment by the GFI Leased Real Property, and Company or any other agreement that relates in any way to the occupancy Subsidiary of $250,000 or use of any of the GFI Leased Real Property; ormore;
(xvi) any agreement license, royalty or other contract concerning Intellectual Property (other than shrink-wrap software and databases licensed to the termination Company or breach to any of which the Subsidiaries under nonexclusive software licenses granted to end-user customers by third parties in the ordinary course of business of such third parties' businesses), such Company Disclosure Letter indicating, in the case of any such license, whether the Company or any of the failure to obtain consent Subsidiaries is the licensee or licensor; and
(xvii) each amendment, supplement and modification (whether written or oral) in respect of constitutes a Material Adverse Effectany of the foregoing.
(b) The agreements, commitments, arrangements Company has made available to Parent a correct and plans, whether complete copy of each written or oral, listed or required to be contract listed in Section 2.19(aSECTION 4.14(a) of the GFI Company Disclosure Letter together with and a written summary setting forth the GFI License Agreements are terms and conditions of each oral contract referred to herein in SECTION 4.14(a) of the Company Disclosure Letter. With respect to each such contract (except as set forth in SECTION 4.14(a) of the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, Company Disclosure Letter): (i) neither GFI nor any GFI Subsidiary the contract is andlegal, to the Knowledge of GFIvalid, no other party isbinding, enforceable, and in breach or violation of, or in default under, any GFI Contract, full force and effect; (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiarythe contract will continue to be legal, as the case may bevalid, enforceable in accordance with its termsbinding, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both)enforceable, and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI on identical terms following the Effective Time; (iii) no party is in breach or the GFI Subsidiaries, as applicable, and, to the Knowledge of GFI, with respect to the other parties theretodefault, and have been delivered no event has occurred that with the passage of time or made available to Parentgiving of notice would constitute a breach or default, or permit termination, modification, or acceleration, under the contract; and (iv) no party has repudiated any provision of the contract.
Appears in 1 contract
Contracts. (a1) Except for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) The Acquiror has Previously Disclosed each of the GFI Disclosure Letter, neither GFI nor following executory Contracts to which either the Acquiror or any GFI Subsidiary of its Subsidiaries is a party party, or by which any of them is bound or to or bound by, nor are which any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits underproperties is subject:
(iA) any lease of real property;
(B) any partnership, joint venture or other similar agreement or arrangement, or any options or rights to acquire from any person any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities or such person, in each case, entered into other than in the ordinary course of business;
(C) any agreement relating to Indebtedness;
(ii) any contracts under which GFI or any of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess of $500,000;
(iii) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(v) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise);
(D) any indenture, mortgage, promissory note, loan agreement, guarantee or other agreement or commitment, outstanding as of the date hereof, for aggregate consideration the borrowing of money by the Acquiror or one of its Subsidiaries or the deferred purchase price of property in excess of $2,000,000100,000 (in either case, whether incurred, assumed, guaranteed or secured by any asset);
(viE) any agreement in force as of the date hereof that creates future payment obligations in excess of $100,000 in the aggregate and which by its terms does not terminate or is not terminable without penalty upon notice of 90 days or less;
(F) any license, franchise or similar agreement material to the Acquiror or any of its Subsidiaries or any agreement relating to any trade name or intellectual property right that is material to the Acquiror or any of its Subsidiaries;
(G) any exclusive dealing agreement or any agreement that limits the freedom of the Acquiror or any of its Subsidiaries to compete in any line of business or with any person or in any area or that would so limit their freedom after the Effective Date;
(H) any compensation, employment, severance, supplemental retirement or other similar agreement or arrangement with any employee or former employee of, or independent contractor with respect to, the Acquiror or any of its Subsidiaries, or any other agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer Affiliate of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;the Acquiror; and
(vii2) any agreement (including any exclusivity agreement) Each Contract that purports to limit has been, or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements entered into in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit be, Previously Disclosed pursuant to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effect.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in this Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI the Acquiror or a GFI Subsidiaryone or more of its Subsidiaries, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or the GFI Subsidiaries, as applicable, and, to the Knowledge of GFI, with respect to the other parties theretoeffect, and have been delivered the Acquiror or made available to Parentits Subsidiaries parties thereto are not in default or breach in any material respect under the terms of any such Contract.
Appears in 1 contract
Contracts. (a) Except (i) for this Agreement, (ii) for the CME Merger Agreement Contracts filed as exhibits to the SEC Reports prior to the date hereof, (iii) for the Company Plans and any agreements contemplated by CME Merger Agreement Company Stock Plans or the transactions contemplated thereby and any contract (iv) as set forth in Section 2.19(a) 3.8 of the GFI Company Disclosure LetterSchedule, as of the date hereof, neither GFI the Company nor any GFI Subsidiary of its subsidiaries is a party to or bound by, nor are by any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits underContract that:
(i) contains covenants binding upon the Company or any agreement relating of its Affiliates that materially restrict the ability of the Company or any of its Affiliates to Indebtednesscompete in any business or in any geographic area that, in each case, are material to the Company and its subsidiaries taken as a whole as of the date of this Agreement, except for leases;
(ii) any contracts under which GFI is a material partnership, joint venture or any similar Contract that, in each case, is material to the Company and its subsidiaries taken as a whole as of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess date of $500,000this Agreement;
(iii) under which the Company or any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint ventureits subsidiaries is liable for indebtedness in excess of $50,000,000;
(iv) expressly limits or otherwise restricts the ability of the Company or any material agreement relating of its subsidiaries to any strategic alliance, joint development, joint marketing, partnership pay dividends or similar arrangementmake distributions to its shareholders (excluding restrictions applicable only upon a default or event of default);
(v) any agreement or series by its terms calls for aggregate payments by the Company and its subsidiaries under such Contract of related agreementsmore than $50,000,000 over the remaining term of such Contract (other than this Agreement, including any option agreementContracts subject to clause (iii) above, relating purchase orders for the purchase of inventory and/or equipment in the ordinary course of business and leases);
(vi) relates to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;50,000,000; and
(vii) any agreement by its terms calls for aggregate payments to the Company and its subsidiaries under such Contract of more than $50,000,000 over the remaining term of such Contract (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements entered into this Agreement or purchase orders for the purchase of inventory and/or equipment in the ordinary course of business, under which ). Each Contract (Ai) any Person set forth (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be set forth) in Section 3.8 of the Company Disclosure Schedule, (ii) filed as an exhibit to any GFI the SEC Document (Reports as described in Items 601(b)(4) and a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act, or (iii) that has not been filed disclosed by the Company on a Current Report on Form 8-K as an exhibit a “material contract” (excluding any Company Plan), is referred to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes herein as a “Company Material Adverse EffectContract”.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) Each of the GFI Disclosure Letter together with Company Material Contracts is a legal, valid and binding obligation of, and enforceable against, the GFI License Agreements are referred to herein as Company or the “GFI Contracts.” Except as would not have Company subsidiary that is a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is party thereto and, to the Knowledge knowledge of GFIthe Company, no each other party isthereto, and is in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid full force and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable effect in accordance with its terms, subject to the Bankruptcy and Equity Exception, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iiii) to the Knowledge extent that any Material Contract expires or terminates in accordance with its terms in the ordinary course of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, business consistent with or without notice or lapse of time or both)past practice, and (ivii) each GFI Contract (including all modifications for such failures to be legal, valid and amendments thereto and waivers thereunder) is binding or to be in full force and effect that do not have and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company.
(c) The Company or its subsidiary that is a party to a Company Material Contract is in compliance with respect to GFI all terms and requirements of each Company Material Contract, and no event has occurred that, with notice or the GFI Subsidiariespassage of time, as applicableor both, would constitute a breach or default by the Company or any of its subsidiaries under any such Company Material Contract, and, to the Knowledge knowledge of GFIthe Company, no other party to any Company Material Contract is in breach or default (nor has any event occurred which, with respect notice or the passage of time, or both, would constitute such a breach or default) under any Company Material Contract, except in each case where such violation, breach, default or event of default does not have and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. Except as does not have and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, neither the Company nor, to the knowledge of the Company, any of its subsidiaries has received written notice from any other parties thereto, and have been delivered party to a Company Material Contract that such other party intends to terminate or made available to Parentrenegotiate in any material respects the terms of any such Company Material Contract (except in accordance with the terms thereof).
Appears in 1 contract
Contracts. (ai) Except for this AgreementThe ▇▇▇▇▇▇ Disclosure Letter sets out a list of all Contracts that are material to the business, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) operations, results of the GFI Disclosure Letter, neither GFI nor any GFI Subsidiary is a party to or bound by, nor are any of their respective assets, businesses or operations party tooperations, or bound financial condition of ▇▇▇▇▇▇ and its subsidiaries considered as a whole (the "MATERIAL CONTRACTS"), comprising the following types of material Contracts, agreements or affected by, or receive benefits underunderstandings:
(iA) any Contract or agreement relating to Indebtedness;
indebtedness for borrowed money (ii) including any contracts under which GFI guarantee of or any obligation to guarantee the indebtedness for borrowed money of the GFI Subsidiaries has advanced or loaned any Person any amounts other than a subsidiary) having an outstanding principal amount in excess of $500,000, and, for each such Contract or agreement, the aggregate principal amount outstanding as of the date of this Agreement;
(iii) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(v) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% Contract or more agreement relating to a Lien imposed on any material asset or property of the outstanding voting securities of which are directly ▇▇▇▇▇▇ or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or a subsidiary;
(C) any current currency exchange, interest rate exchange, commodity exchange or former director similar Contract or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiaryagreement;
(viiD) any Contract or agreement (including with any exclusivity agreement) that purports supplier, distributor or customer for the furnishing of services or purchase or sale of goods, equipment, inventory or other assets to limit or restrict in any material respect either the type of business in which GFI by ▇▇▇▇▇▇ or any GFI Subsidiary may engage subsidiary requiring payment of or receipt over the manner remaining life of such Contract or locations in which any agreement of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements entered into in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less more than $1,000,000;
(xE) any other manufacturing Contract or original equipment manufacturing Contract or agreement requiring payment of or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) receipt over the remaining life of Regulation S-K under the Securities Act) that has not been filed as an exhibit to such Contract or incorporated by reference in the GFI SEC Documents filed prior to the Date agreement of Deliverymore than $1,000,000;
(xiF) any Intellectual Property Contract or licence, excluding standard, off-the-shelf computer software licences;
(G) any Contract or agreement under which GFI in connection with acquisitions, dispositions or the purchase or sale of shares or assets (other than in the Ordinary Course of Business) completed within three years of the date of this Agreement, including any Contract or other agreement entered into in connection with such purchase or sale Contract with continuing rights flowing to, or continuing obligations of, ▇▇▇▇▇▇ or any GFI Subsidiaries has granted any Person registration rights of its subsidiaries (including demand ongoing payments or royalties and piggy-back registration rightsongoing indemnification obligations);
(xiiH) any partnership, joint venture or similar agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per yeararrangement;
(xiiiI) any material Contract or agreement that limits or purports to limit the ability of ▇▇▇▇▇▇ or any subsidiary to compete with any Governmental EntityPerson or in any line of business or in any geographic area or during any period of time;
(xivJ) any material Contract or agreement between (other than dealer, reseller or among Affiliates distributor agreements) that creates or imposes any exclusivity right or obligation with respect to ▇▇▇▇▇▇ or any of GFI;its subsidiaries or the other party to such Contract or agreement; and
(xvK) any Lease for the GFI Leased Real Propertyother Contract to which ▇▇▇▇▇▇ or any subsidiary is a party which is material to ▇▇▇▇▇▇ and its subsidiaries taken as a whole.
(ii) None of ▇▇▇▇▇▇, and any other agreement that relates in any way its subsidiaries nor, to the occupancy or use knowledge of ▇▇▇▇▇▇, any of the GFI Leased Real Property; or
(xvi) any agreement the termination other parties thereto, is in default or breach of, in any material respect, nor have ▇▇▇▇▇▇ or its subsidiaries received any notice of which default or the failure to obtain consent breach in any material respect of constitutes a of, or termination under, any Material Adverse Effect.
(b) The agreementsContract, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge knowledge of GFI▇▇▇▇▇▇, there exists no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement state of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred facts which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without after notice or lapse of time or both)both would constitute a material default or breach of such Material Contract, and except as would not, individually or in the aggregate, have a Material Adverse Effect on ▇▇▇▇▇▇.
(iviii) each GFI Except as set forth in the ▇▇▇▇▇▇ Disclosure Letter, no Material Contract (a) would be violated, contravened or breached by, or under which a default would occur; (b) requires any consent or prior approval be obtained from any Person (including all modifications and amendments thereto and waivers thereunderconsents relating to the change of control of ▇▇▇▇▇▇); or (c) is would terminate; in full force and effect with respect to GFI each case, upon the execution of this Agreement or the GFI Subsidiaries, as applicable, and, to completion of the Knowledge of GFI, with respect to the other parties thereto, and have been delivered or made available to Parenttransactions provided for herein.
Appears in 1 contract
Contracts. (a) Except for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract as set forth in Section 2.19(a) of the GFI Disclosure Letteron Schedule 5.11, neither GFI the Company nor any GFI Subsidiary of its Subsidiaries is a party to or bound by, nor are by any of their respective assets, businesses written or operations party to, or bound or affected by, or receive benefits underoral:
(i) pension, profit sharing, stock option, employee stock purchase, bonus or other plan or arrangement providing for deferred or other compensation to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement relating to Indebtednessor any other contract with any labor union, or severance agreements, programs, policies or arrangements;
(ii) contract for the employment of any contracts officer, employee or other Person on a full–time, part–time, consulting or other basis involving annual consideration in excess of $25,000 or relating to loans to officers, directors or Affiliates;
(iii) contract under which GFI the Company or any of the GFI its Subsidiaries has advanced or loaned any other Person any amounts exceeding $25,000 in excess of $500,000;
(iii) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint ventureaggregate;
(iv) any material agreement or indenture relating to Indebtedness of the Company or any strategic alliance, joint development, joint marketing, partnership or similar arrangementof its Subsidiaries;
(v) lease or agreement under which the Company or any of its Subsidiaries is lessee of or holds or operates any property, real or personal, owned by any other Person, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $50,000;
(vi) lease or agreement under which the Company or series any of its Subsidiaries is lessor of or permits any other Person to hold or operate any property, real or personal, owned or controlled by the Company or any of its Subsidiaries;
(vii) contract or group of related agreements, including any option agreement, relating to contracts with the acquisition same Person or disposition group of any business or real property (whether by merger, sale affiliated Persons the performance of stock, sale of assets or otherwise) for aggregate which involves consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement50,000, other than such agreements entered into purchase and sales orders incurred in the ordinary course of business;
(viii) assignment, under which license, indemnification or agreement with respect to any intangible property (Aincluding any Intellectual Property);
(ix) any Person (other than GFI warranty agreement with respect to its services rendered or a GFI Subsidiary) has directly its products sold or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000leased;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries it has granted any Person any registration rights (including demand and piggy-back or piggyback registration rights);
(xiixi) any sales, distribution, supply or franchise agreement that involves expenditures or receipts of GFI or any GFI Subsidiary payments in excess of $3,000,000 50,000;
(xii) agreement with a term of more than six months which is not terminable by the Company upon less than 30 days’ notice without penalty and involves a consideration in the aggregate per yearexcess of $50,000;
(xiii) contract regarding voting, transfer or other arrangements related to the Company’s capital stock or warrants, options or other rights to acquire any material agreement with any Governmental Entityof the Company’s capital stock;
(xiv) contract or agreement prohibiting it from freely engaging in any material agreement between business or among Affiliates of GFI;competing anywhere in the world; or
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates which is material to their operations and business prospects or involves a consideration in any way to the occupancy or use excess of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effect$50,000.
(b) The agreements, commitments, arrangements All of the agreements and plans, whether written or oral, listed instruments set forth or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements set forth on Schedule 5.11 are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI valid, binding and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except their respective terms and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby. Except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principlesset forth on Schedule 5.11, (iiii) to the Knowledge of GFIthe Company, the Company and its Subsidiaries have performed all obligations required to be performed by them and are not in default under or in breach of nor in receipt of any claim of default or breach under any agreement or instrument to which they are subject; (ii) to the Knowledge of the Company, no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or violation ofevent of noncompliance by the Company or any of its Subsidiaries under any agreement or instrument to which the Company or any of its Subsidiaries is subject; (iii) neither the Company nor any of its Subsidiaries has any present expectation or intention of not fully performing all such obligations; (iv) no agreement or instrument to which the Company or any of its Subsidiaries is bound is currently subject to or, to the Company’s Knowledge, is expected to be subject to cancellation or a default underany other material modification by the other party thereto or is subject to or is expected to be subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; (v) to the Company’s Knowledge, there is no breach or anticipated breach by the other parties to any GFI Contract (in each caseagreement, with instrument or without notice or lapse of time or both)commitment to which the Company and its Subsidiaries are parties, and (ivvi) each GFI Contract (including all modifications the Company and amendments thereto and waivers thereunder) its Subsidiaries have not subleased, licensed, or otherwise granted any Person the right to use or occupy any Leased Real Property or any portion thereof. Except as set forth on Schedule 5.11, neither the Company nor any of its Subsidiaries is in full force and effect with respect a party to GFI any contract, agreement or commitment the GFI Subsidiaries, as applicable, and, performance of which could reasonably be expected to the Knowledge of GFI, with respect to the other parties thereto, and have been delivered or made available to Parenta Material Adverse Effect.
Appears in 1 contract
Contracts. (a) Except for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract as set forth in Section 2.19(a) 4.17 of the GFI Company Disclosure LetterLetter or as filed by the Company as an exhibit to any of the Company Reports, neither GFI the Company nor any GFI Subsidiary of its Subsidiaries is a party to or bound by, nor are by any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits underContract:
(i) any agreement relating that is or would be required to Indebtednessbe filed by the Company with the SEC pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) any contracts under which GFI that prohibits or any restricts the ability of the GFI Company or its Subsidiaries has advanced (or, following the Effective Time, Parent, the Surviving Corporation or loaned its Affiliates) to conduct its business, to engage in any Person business, to solicit any amounts potential business relation, to operate in excess of $500,000any geographical area or to compete with any Person;
(iii) that contains a put, call or similar right pursuant to which the Company or any material joint ventureof its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any Person or assets;
(iv) that contains any standstill or similar agreement pursuant to which the Company or any of its Subsidiaries has agreed not to acquire assets or securities of another Person;
(v) other than with respect to any partnership that is wholly owned by the Company or any wholly owned Subsidiary of the Company, any partnership, limited liability company, shareholder, joint venture or other similar agreements agreement or arrangements arrangement relating to the formation, creation, operation, management or control of any partnership, strategic alliance partnership or joint venture;
(iv) any material agreement relating to any strategic allianceventure or that provides for the formation, joint developmentcreation, joint marketingoperation, partnership management or similar arrangement;
(v) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition control of any business equity interest in any entity or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000enterprise;
(vi) any material agreement with (A) any Person directly relating to or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiaryevidencing Indebtedness;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in Contract under which any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of them may so engage in any business the Company or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiaryits Subsidiaries;
(viii) that grants any agreement with a non-solicitation rights of first refusal, rights of first offer or “most-favored-nations” pricing provision that purports other similar rights to limit or restrict in any material respect GFI or any GFI SubsidiaryPerson;
(ix) (A) for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of any agreementPerson for aggregate consideration under such Contract in excess of $250,000, or (B) for any acquisition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of any Person, pursuant to which the Company or any of its Subsidiaries has continuing “earn out” or other similar contingent payment obligations, indemnification obligations or other material obligations outstanding;
(x) (A) is an Inbound IP License (excluding commercially available, unmodified, off the shelf software programs, including Open Source Software, that are licensed by the Company or its Subsidiaries pursuant to “shrink wrap” licenses, the total annual fees associated with which are less than $50,000 (other than Software included in or used to provide or distribute any Customer Offerings), which such agreements licenses shall not be required to be disclosed under this Section 4.17(a)(x) but shall be considered Material Contracts hereunder), (B) is an Outbound IP License (except for any nonexclusive licenses or subscriptions granted to customers of the Company or its Subsidiaries that are entered into in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner business consistent with industry past practice), unless which such guarantor licenses or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would subscriptions shall not be required to be filed disclosed under this Section 4.17(a)(x) but shall be considered Material Contracts hereunder if they otherwise qualify as an exhibit Material Contracts hereunder), or (C) affects the ability of the Company or its Subsidiaries to use, enforce, or disclose any GFI SEC Document (as described rights in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of DeliveryCompany Intellectual Property;
(xi) that is a mortgage, pledge, security agreement, deed of trust or other Contract granting a Lien, other than a Permitted Lien, on any agreement under which GFI property or asset of the Company or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights)Subsidiary of the Company;
(xii) other than Contracts with a customer, any agreement Contract of the Company or its Subsidiaries that involves expenditures is reasonably expected to provide for payments to the Company or receipts of GFI or any GFI Subsidiary its Subsidiaries in excess of $3,000,000 500,000 in the aggregate per year2016;
(xiii) any material agreement Contract with a Material Customer (provided, that the Company shall not be required to list on Section 4.17 of the Company Disclosure Letter, or make available to Parent prior to the date hereof, any Governmental EntityContract with a Material Customer that is not a top ten (10) customer based on gross sales proceeds for the calendar year 2015 and for the three (3) month period ending March 31, 2016; it being understood that notwithstanding this proviso, all Contracts with Material Customers shall be deemed to be Material Contracts for all other purposes of this Agreement);
(xiv) any material agreement between Contract of the Company or among Affiliates its Subsidiaries that is reasonably expected to provide for payments from the Company or its Subsidiaries to the counterparty thereof in excess of GFI$500,000 in 2016;
(xv) any Lease lease or similar arrangement under which the Company or its Subsidiaries is the lessee of, or holds or uses, any machinery, equipment or other tangible personal property owned by any third party for the GFI Leased Real Property, and any other agreement that relates an annual rent in any way to the occupancy or use excess of any of the GFI Leased Real Property; or$500,000;
(xvi) any agreement Contract that obligates the termination Company or breach its Subsidiaries (or following the Merger, Parent, the Surviving Corporation or their Affiliates) to conduct business on an exclusive basis with any third party, that contains “most favored nation” or similar covenants;
(xvii) any Contract pursuant to which the Company or its Subsidiaries agrees to indemnify or hold harmless any director or executive officer of which the Company or its Subsidiaries (other than the failure organizational documents of the Company or its Subsidiaries); and
(xviii) any Contracts between the Company or its Subsidiaries, on the one hand, and any of the Company’s or its Subsidiaries’ stockholders or equityholders or their Affiliates (other than the Company or its Subsidiaries), on the other hand (each such Contract described in clauses (i) through this (xviii), whether or not set forth in the Company Disclosure Letter or filed with the SEC, is referred to obtain consent in respect of constitutes herein as a “Material Adverse EffectContract”).
(b) The agreements, commitments, arrangements A true and plans, whether written complete copy of each Material Contract (other than Contracts described in the proviso of Section 4.17(a)(xiii)) has been publicly filed or oral, listed or required made available to be listed in Section 2.19(a) Parent prior to the date hereof. Each of the GFI Disclosure Letter together with Material Contracts is valid and binding on each of the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have Company and its Subsidiaries that is a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is party thereto and, to the Knowledge of GFIthe Company, no each other party isthereto and is in full force and effect and is enforceable against the Company or its Subsidiaries and, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFIthe Company, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract each other party thereto (in each case, subject to the Bankruptcy and Equity Exception). To the Knowledge of the Company, no Person is challenging the validity or enforceability of any Material Contract. Except as set forth on Section 4.17(b) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries is in material breach or default under any Material Contract, nor, to the Knowledge of the Company, does any event, fact or circumstance exist that with or without notice or lapse of time or both)both would constitute a material breach or default, and (ivunder any Material Contract by any of the Company or its Subsidiaries that is a party thereto. Except as set forth on Section 4.17(b) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or of the GFI Subsidiaries, as applicable, andCompany Disclosure Letter, to the Knowledge of GFIthe Company, no other party to any Material Contract is in material breach or default under any Material Contract, nor does any event, fact or circumstance exist that with respect notice or lapse of time or both would constitute a material breach or default by any such other party thereunder. The Company has not received any written notice from any Person that such Person intends to the other parties theretoterminate, and have been delivered or made available to Parentnot renew, or materially amend, modify or alter, any Material Contract.
Appears in 1 contract
Sources: Merger Agreement (Sciquest Inc)
Contracts. Schedule 4.9 sets forth, as of the date hereof, a --- --------- ------------ list of all of the following Contracts to which the Company or any of its Subsidiaries is a party or by which it or any material portion of their respective properties or assets are bound or subject (together with the agreements specifically identified in this Agreement or in the other Schedules hereto, the "Scheduled Contracts"): -------------------
(a) Except for this Agreementcontracts and other agreements with any labor union, the CME Merger Agreement and collective bargaining unit or association representing any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) employee of the GFI Disclosure Letter, neither GFI nor any GFI Subsidiary is a party to Company or bound by, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:
(i) any agreement relating to Indebtednessits Subsidiaries;
(iib) any contracts under agreements for acquisitions or dispositions (by merger, purchase or sale of stock or otherwise) of material assets entered into in the last two years or pursuant to which GFI the Company has ongoing obligations (other than acquisitions or any dispositions of assets in the GFI Subsidiaries has advanced or loaned any Person any amounts ordinary course) with a value in excess of $500,000200,000 (other than the exercise of the option to purchase the property at Egg Harbor Township at a price no greater than $350,000, and on terms reasonably acceptable to the Sellers and the Buyer);
(iiic) any material joint venture, partnership, limited liability company, shareholder, or contracts and other similar agreements or arrangements relating to indebtedness of the formationCompany or such Subsidiary, creation, operation, management or control guarantees of the indebtedness of any partnership, strategic alliance other Person or joint venture;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(v) any agreement or series the deferred purchase price of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration where such deferred purchase price is in excess of $2,000,000200,000;
(vid) any material agreement with (A) any Person directly all partnership, joint venture or indirectly owningother similar Contracts, controlling arrangements or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiaryagreements;
(viie) any lease, license or other Contract pursuant to which any person has the right to occupy or use any of the Owned Real Property or any portion of the premises that are the subject of the Leases;
(f) each agreement (including any exclusivity agreement) that restricts or purports to limit or restrict in any material respect either the type right of business in which GFI the Company or any GFI Subsidiary may engage or of the manner or locations in which any of them may so Company to engage in any business anywhere in the world or could require to compete with any Person with respect to any business anywhere in the disposition of any material assets or line of business of GFI or any GFI Subsidiaryworld;
(viiig) any agreement with a non-solicitation all license, sale, dealer, distribution, commission, marketing, agent, franchise, technical assistance or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreementsimilar agreements, other than such agreements entered into commission arrangements with employees of the Company or any of its Subsidiaries, relating to or providing for the marketing or sale of the products or services of or by the Company or any Subsidiary of the Company; and
(h) any other material contract whether or not made in the ordinary course of business, under business which (A) any Person (other than GFI provides for or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI would reasonably be expected to provide for the payment by the Company or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments the Company after the date of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose this Agreement of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less more than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate 200,000 per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effect.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” annum. Except as would not have a material impact disclosed on the respective businesses of GFI and the GFI SubsidiariesSchedule 4.9, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Scheduled Contract is a ------------ legal, valid and binding agreement obligation of GFI the Company or a GFI of its Subsidiary, as the case may be, and, to the Knowledge of Sellers, each other party thereto, enforceable against each such party thereto in accordance with its material terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and moratorium or similar laws of general applicability relating to or affecting creditors’ ' rights or by generally and subject to general equity principlesprinciples of equity, (iii) and none of the Company, any Subsidiary of the Company nor, to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default underSellers, any GFI Contract other party thereto, is (in each case, or with or without notice or lapse of time or both)both would be) in default thereunder, and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or except where such default would not have a Material Adverse Effect. As of the GFI Subsidiariesdate of this Agreement, as applicable, and, the Company has not received notice to the Knowledge effect that any party to a Scheduled Contract intends to terminate or not renew the same at its next renewal date. Complete and correct copies of GFI, with respect to the other parties thereto, and each Scheduled Contract have been previously delivered or made available to ParentBuyer.
Appears in 1 contract
Sources: Share Purchase Agreement (United Rentals North America Inc)
Contracts. (a) Except for this Agreement, the CME Merger Agreement Schedule 4.7 sets forth a complete and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) correct list of all contracts of the GFI Disclosure Letter, neither GFI nor any GFI Subsidiary is a party following types to or bound by, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:
(i) any agreement relating to Indebtedness;
(ii) any contracts under which GFI the Company or any of the GFI Subsidiaries is a party or by which the Company or any of the Subsidiaries or any of the assets of the Company or any of the Subsidiaries are bound and as to which the Company or any of the Subsidiaries has advanced any outstanding obligations as of the date hereof (the "Contracts"):
(a) each contract for the employment, retention, severance or loaned termination of any Person director, officer, employee, consultant, agent or group of employees of the Company or any amounts in excess of $500,000the Subsidiaries, each collective bargaining agreement covering any group of employees of the Company or any of the Subsidiaries and each noncompetition, confidentiality or similar agreement with any such person or persons;
(iiib) any material joint ventureeach profit sharing, partnershipbonus, limited liability companyincentive, shareholderdeferred compensation, stock option, stock purchase, severance pay, thrift, pension, retirement, hospitalization or other similar agreements plan, agreement or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(vc) any agreement each contract or series of related agreements, including any option agreement, relating to for the acquisition or disposition sale of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities assets, properties or rights of GFI the Company or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements entered into in outside the ordinary course of business, (whether or not such sale would be accomplished by a sale of assets, a sale of shares, a merger or otherwise);
(d) each contract which contains any provisions requiring the Company or any of the Subsidiaries to indemnify or act for any other person or entity or to guaranty or act as surety for any other person or entity, except for any contract under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI the Company or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements the Subsidiaries is obligated for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,00050,000;
(xe) each contract restricting the Company or any of the Subsidiaries from conducting any type of business for any period of time or restricting their use or disclosure of any confidential or proprietary information;
(f) each partnership, joint venture or management contract or similar arrangement or agreement which involves a right to share profits or future payments;
(g) each licensing, distributor, dealer, franchise, sales or manufacturer's representative, agency or other similar contract which entails aggregate payments by the Company or any of its Subsidiaries of more than $50,000;
(h) each contract under which the Company or any of the Subsidiaries performs services;
(i) each lease, license, sublease, sublicense or agreement with respect to any real property or aIny interest therein;
(j) each lease, license, sublease, sublicense, agreement or arrangement with respect to the use or ownership of any tangible personal property by the Company or any of the Subsidiaries and which entails aggregate annual payments of more than $25,000; and
(k) any other agreement which entails aggregate annual payments by the Company or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date Subsidiaries of Deliverymore than $50,000;
(xil) each agreement pursuant to which any agreement professional of the type described under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights)42 C.F.R. ss.410.20(b) renders services on behalf of the Company;
(xiim) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material each agreement with any Governmental Entity;
(xiv) any material agreement between referral sources, whether or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way not related to the occupancy or use of any referrals, including "sub-contracting agreements" with respect to Medicare and Medicaid patients. Except as set forth on Schedule 4.7, each of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effect.
(b) The agreementsContracts is valid, commitments, arrangements binding and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer terms and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect effect. Except as set forth on Schedule 4.7, neither the Company nor any of the Subsidiaries is in default under any material provision of any Contract and has not given any party to any contract any written notice of default, set-off or claim of default. To the knowledge of the Principal Shareholders and the Company, the parties to the Contracts other than the Company and the Subsidiaries are not in default of any of their respective obligations under the Contracts, and there has not occurred any event which with respect to GFI the passage of time or the GFI Subsidiaries, as applicable, and, to giving of notice (or both) would constitute a default under any Contract by such other parties. All amounts payable by the Knowledge Company or any of GFI, with respect to the other parties theretoSubsidiaries under the Contracts are, and have been will at the Closing Date, be current. The Company has either delivered or made available to ParentBuyer complete copies of each of the Contracts or written descriptions in reasonable detail of the same.
Appears in 1 contract
Contracts. (a) Except for this Agreement, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) 4.12 of the GFI ▇▇▇▇▇ Disclosure Letter, neither GFI nor Letter lists the following Contracts (i) to which any GFI Subsidiary ▇▇▇▇▇ Company is a party to or bound by, nor are by which any of their respective assets, businesses or operations party to, or ▇▇▇▇▇ Company is bound or affected by, to which any asset of any ▇▇▇▇▇ Company is subject or receive benefits under:
(i) under which any agreement relating to Indebtedness;
▇▇▇▇▇ Company has any rights or the performance of which is guaranteed by any ▇▇▇▇▇ Company and (ii) any contracts under which GFI or any of the GFI Subsidiaries has advanced or loaned any Person any that either involve amounts in excess of $500,000;
1,000,000 and a duration of eighteen months or longer or involve amounts of $5,000,000 or more regardless of duration (iiicollectively, with the ▇▇▇▇▇ Leases, Licenses and Insurance Policies, the “▇▇▇▇▇ Material Contracts”); provided, that the limitations in this clause (ii) any material joint venturedo not apply to clauses (D), partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(ivF) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
and (vM) any agreement below: (A) each Contract (or series of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreementContracts) that purports to limit involves delivery or restrict in any material respect either the type receipt of business in which GFI products or any GFI Subsidiary may engage services or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements was not entered into in the ordinary course of business; (B) each lease, under which rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property, including each ▇▇▇▇▇ Lease and License; (AC) each licensing agreement, consent agreement, coexistence agreement, settlement agreement or other Contract with respect to Intellectual Property, including any agreement with any current or former Employee, consultant, or contractor regarding the appropriation or the non-disclosure of any Intellectual Property, except “shrink wrap” and “click-through” licenses to commercially available “off the shelf” software; (D) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees; (E) each joint venture, partnership or Contract involving a sharing of profits, losses, costs or Liabilities with any other Person; (F) each Contract containing any covenant that purports to restrict the business activity of any ▇▇▇▇▇ Company or limit the freedom of any ▇▇▇▇▇ Company to engage in any line of business or to compete with any Person; (G) each Contract providing for payments to or by any Person (based on sales, purchases or profits, other than GFI direct payments for goods; (H) each power of attorney; (I) each Contract entered into other than in the ordinary course of business that contains or a GFI Subsidiaryprovides for an express undertaking by any ▇▇▇▇▇ Company to be responsible for consequential, incidental or punitive damages; (J) has directly each Contract (or indirectly guaranteed series of related Contracts) for capital expenditures; (K) each written warranty, guaranty or provided an indemnity other similar undertaking with respect to contractual performance other than in respect the ordinary course of business; (L) each Contract for Indebtedness; (M) each employment or consulting Contract; and (N) each Contract to which any Stockholder or any Related Person of any liabilitiesStockholder or of any ▇▇▇▇▇ Company is a party or otherwise has any rights, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse Effectinterests.
(b) The agreements▇▇▇▇▇ has delivered or otherwise made available to ▇▇▇▇▇▇’▇ a correct and complete copy of each written ▇▇▇▇▇ Material Contract and a written summary setting forth the terms and conditions of each other ▇▇▇▇▇ Material Contract. Each ▇▇▇▇▇ Material Contract, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (i) neither GFI nor any GFI Subsidiary is and, respect to the Knowledge of GFI▇▇▇▇▇ Companies, no other party isis legal, in breach or violation ofvalid, or in default underbinding, any GFI Contractenforceable, (ii) each GFI Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect and will continue to GFI or be so on identical terms following the GFI Subsidiaries, as applicable, and, to the Knowledge of GFIClosing Date. Each ▇▇▇▇▇ Material Contract, with respect to the other parties theretoto such ▇▇▇▇▇ Material Contract, to the Knowledge of any ▇▇▇▇▇ Company, is legal, valid, binding, enforceable, in full force and effect and will continue to be so on identical terms following the Closing Date. No ▇▇▇▇▇ Company is in breach or default, and have been delivered no event has occurred that with notice or made available lapse of time would constitute a breach or default, or permit termination, modification or acceleration, under any ▇▇▇▇▇ Material Contract. To the Knowledge of any ▇▇▇▇▇ Company, no other party is in breach or default, and no event has occurred that with notice or lapse of time would constitute a breach or default, or permit termination, modification or acceleration, under any ▇▇▇▇▇ Material Contract. No party to Parentany ▇▇▇▇▇ Material Contract has repudiated any provision of any ▇▇▇▇▇ Material Contract.
Appears in 1 contract
Sources: Merger Agreement (Lance Inc)
Contracts. (a) Except for 13.1 The definition in this Agreementparagraph applies in this agreement. Material Contract: any agreement, arrangement, understanding or commitment that the CME Merger Agreement and Company or any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract set forth in Section 2.19(a) of the GFI Disclosure Letter, neither GFI nor any GFI Subsidiary its Subsidiaries is a party to or bound by, nor are and which is of material importance to the business, profits or assets of the Company or any of their respective assetsits Subsidiaries.
13.2 Except as Disclosed, businesses or operations neither the Company nor any of its Subsidiaries is a party to, or bound otherwise subject to, any agreement, arrangement, understanding or affected by, or receive benefits under:commitment which:
(i) any agreement relating to Indebtedness13.2.1 is a Material Contract; DocuSign Envelope ID: 7A64C679-377F-458A-B7C0-50276FFA55AB
13.2.2 is not in the ordinary and usual course of the Business;
(ii) 13.2.3 may be terminated as a result of any contracts under which GFI Change of Control of the Company or any of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess of $500,000its Subsidiaries;
(iii) 13.2.4 restricts the freedom of the Company or any material of its Subsidiaries to carry on the whole or any part of the Business in any part of the world in such manner as it thinks fit;
13.2.5 involves agency or distributorship;
13.2.6 involves partnership, joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating to any strategic allianceconsortium, joint development, joint marketing, partnership shareholders or similar arrangementarrangements;
(v) 13.2.7 involves the grant of any agreement sole agency or series of related agreements, including any option agreement, relating distributorship or exclusive rights by or to the acquisition Company or disposition any of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000its Subsidiaries;
(vi) any material agreement with (A) any Person directly 13.2.8 cannot be readily fulfilled or indirectly owning, controlling performed by the Company or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI relevant Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement on time (including any exclusivity agreementapplicable grace periods) that purports to limit without undue or restrict in any material respect either unusual expenditure of money and effort;
13.2.9 requires the type of business in which GFI Company or any GFI Subsidiary may engage of its Subsidiaries to pay any commission, finders' fee, royalty or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiarylike;
(viii) any agreement with 13.2.10 is not on arm's length terms; or
13.2.11 other than in respect of office equipment, is a non-solicitation finance lease, hire purchase, rental or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any credit sale agreement, other or which otherwise provides for the purchase or right to purchase any asset by instalment payments.
13.3 Other than such agreements entered into in the ordinary course of business, under which (A) there are no outstanding or ongoing negotiations of material importance to the business, profits or assets of the Company or any Person (other than GFI of its Subsidiaries, or any outstanding quotations or tenders for a contract that, if accepted, would give rise to a Material Contract, or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments contract of any other Person (other than GFI or a GFI Subsidiary) (type as referred to in each case other than endorsements for the purpose paragraph 13.2 of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed as an exhibit to any GFI SEC Document (as described in Items 601(b)(4) and 601(b)(10) Part 1 of Regulation S-K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the GFI SEC Documents filed prior to the Date of Delivery;
(xi) any agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand and piggy-back registration rights);
(xii) any agreement that involves expenditures or receipts of GFI or any GFI Subsidiary in excess of $3,000,000 in the aggregate per year;
(xiii) any material agreement with any Governmental Entity;
(xiv) any material agreement between or among Affiliates of GFI;
(xv) any Lease for the GFI Leased Real Property, and any other agreement that relates in any way to the occupancy or use of any of the GFI Leased Real Property; or
(xvi) any agreement the termination or breach of which or the failure to obtain consent in respect of constitutes a Material Adverse EffectSchedule 6.
(b) The agreements, commitments, arrangements and plans, whether written or oral, listed or required to be listed in Section 2.19(a) of the GFI Disclosure Letter together with the GFI License Agreements are referred to herein 13.4 So far as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI SubsidiariesWarrantors are aware, (i) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFI, no other party is, in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Material Contract is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles, (iii) to the Knowledge of GFI, no event has occurred which would result in a breach or violation of, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect and binding on the parties to GFI or it.
13.5 Neither the GFI Company nor any of the Subsidiaries, nor any counterparty is, so far as applicablethe Warrantors are aware, and, to the Knowledge of GFI(or will, with respect to the other parties theretolapse of time, and have be) in default of any Material Contract.
13.6 No written notice of termination of a Material Contract has been delivered received or made available to Parentserved by the Company or any of its Subsidiaries.
Appears in 1 contract
Sources: Share Purchase Agreement
Contracts. (a) Except for this AgreementAs of the date hereof, the CME Merger Agreement and any agreements contemplated by CME Merger Agreement or the transactions contemplated thereby and any contract except as set forth in on Section 2.19(a3.13(a) of the GFI Company Disclosure LetterSchedule, neither GFI nor none of the Company or any GFI Subsidiary of the Company Subsidiaries is a party to or bound by, nor are by any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits underContract:
(i) any agreement relating to Indebtedness;
(ii) any contracts under which GFI or any of the GFI Subsidiaries has advanced or loaned any Person any amounts in excess of $500,000;
(iii) any material joint venture, partnership, limited liability company, shareholder, or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iv) any material agreement relating to any strategic alliance, joint development, joint marketing, partnership or similar arrangement;
(v) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any business or real property (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $2,000,000;
(vi) any material agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of GFI or any GFI Subsidiary, (B) any Person 5% or more of the outstanding voting securities of which are directly or indirectly owned, controlled or held with power to vote by GFI or any GFI Subsidiary or (C) any current or former director or officer of GFI or any GFI Subsidiary related to voting Securities of GFI or any GFI Subsidiary;
(vii) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which GFI or any GFI Subsidiary may engage or the manner or locations in which any of them may so engage in any business or could require the disposition of any material assets or line of business of GFI or any GFI Subsidiary;
(viii) any agreement with a non-solicitation or “most-favored-nations” pricing provision that purports to limit or restrict in any material respect GFI or any GFI Subsidiary;
(ix) any agreement, other than such agreements entered into in the ordinary course of business, under which (A) any Person (other than GFI or a GFI Subsidiary) has directly or indirectly guaranteed or provided an indemnity in respect of any liabilities, obligations or commitments of GFI or any GFI Subsidiary or (B) GFI or any GFI Subsidiary has directly or indirectly guaranteed or provided an indemnity in respect of liabilities, obligations or commitments of any other Person (other than GFI or a GFI Subsidiary) (in each case other than endorsements for the purpose of collection in a commercially reasonable manner consistent with industry practice), unless such guarantor or indemnity obligation is less than $1,000,000;
(x) any other agreement or amendment thereto that would be required to be filed by the Company as an exhibit a “material contract” pursuant to any GFI SEC Document (as described in Items 601(b)(4) and Item 601(b)(10) of Regulation S-K under the Securities ActAct (other than a Benefit Plan);
(ii) that (A) limits, or purports to limit, the ability of the Company or any of its Affiliates to compete in any line of business or within any geographic area or with any Person, (B) contains any exclusivity or similar provision binding upon the Company or any Company Subsidiary that is material to the Company’s business, taken as a whole or (C) in any material respect limits the ability of the Company or its Affiliates to hire or solicit for hire for employment any individual or group engaged in business competitive with the business of the Company and the Company Subsidiaries in any material respect;
(iii) relating to Indebtedness for borrowed money for a principal amount in excess of $1,000,000, other than Contracts among the Company and/or its wholly owned Subsidiaries;
(iv) (A) between the Company and any of its directors, officers or Affiliates (other than (x) Contracts not material to the conduct of the business of the Company and the Company Subsidiaries taken as a whole, or (y) any Contract solely between or among the Company and/or its wholly owned Subsidiaries) and (B) any Contract required to be disclosed pursuant to Item 404 of Regulation S-K of the Exchange Act;
(v) that is a license, sublicense, assignment, option or other Contract relating to Company IP, including any such Contract pursuant to which the Company or any of the Company Subsidiaries is granted any right to use, is restricted in its rights to use or register or permits any other Person to use, enforce or register any Company IP (including the agreement with Fanatics Retail Group Concessions, Inc.) (other than (x) Contracts not material to the conduct of the business of the Company and the Company Subsidiaries, taken as a whole, or (y) any enterprise software license or other license to use commercial off-the-shelf computer software under nondiscriminatory pricing terms or licenses contained in service contracts to the extent the licenses contained therein are incidental to such contract, non-exclusive and granted in the ordinary course of business);
(vi) that provides for any most favored nation provision or equivalent preferential pricing terms or similar obligations to which the Company or any of its Affiliates is subject or a beneficiary thereof, which is material to the Company and the Company Subsidiaries taken as a whole;
(vii) that is a purchase, sale or supply Contract that (x) contains volume requirements or commitments, exclusive or preferred purchasing arrangements or promotional requirements and (y) has not been filed as an exhibit more than one year remaining in the term of the Contract and requires in excess of $1,000,000 in remaining obligations;
(viii) involving future payments, capital expenditures, performance of services or delivery of goods or materials to or incorporated by reference the Company and the Company Subsidiaries of an amount or value reasonably expected to exceed $1,000,000 in the GFI SEC Documents filed prior to aggregate during the Date twelve (12) month period following the date hereof;
(ix) entered into after November 30, 2015 involving the acquisition or disposition, directly or indirectly (by merger or otherwise), of Deliverya business or capital stock or other equity interests of another Person for aggregate consideration (in one or a series of related transactions) under such Contract of $1,000,000 or more;
(x) that is a collective bargaining agreement or other Contract with any labor union or other employee representative or group;
(xi) any that is a partnership or joint venture agreement under which GFI or any GFI Subsidiaries has granted any Person registration rights (including demand similar Contract or relates to an equity investment that in each case is material to the Company and piggy-back registration rights)the Company Subsidiaries, taken as a whole;
(xii) any agreement that involves expenditures is for a lease, use or receipts occupancy of GFI real or any GFI Subsidiary in excess personal property of the Company or the Company Subsidiaries providing for annual rentals of $3,000,000 in the aggregate per year1,000,000 or more;
(xiii) that relates to any material agreement with broadcasting or media rights (including audio, video, over the Internet or any Governmental Entityother method of distribution), vendor (including for concessions, merchandise, clothing, souvenirs or novelties at any racetrack), promotion, sponsorship, marketing or advertising involving either (A) annual payments to or by the Company and the Company Subsidiaries of $1,000,000 or more (in cash or kind) or (B) aggregate payments to or by the Company and the Company Subsidiaries of $5,000,000 or more (in cash or kind);
(xiv) that obligates the Company or any material agreement between Company Subsidiary to provide any media inventory of any kind (including radio, television or among Affiliates Internet) to the other contracting party or any other third party involving aggregate consideration over the life of GFIthe Contract of more than $1,000,000;
(xv) pursuant to which any Lease Person holds any naming rights with respect to any racetrack, including any material fixtures or improvements therein, with a fair market value in excess of $1,000,000;
(xvi) with vendors or suppliers to or distributors for the GFI Leased Real PropertyCompany or any Company Subsidiary which requires any minimum amount of purchases or sales in excess of $1,000,000 over a period specified therein, or which provides for any exclusive rights for such vendor, supplier or distributor;
(xvii) involving the payment of royalties or other amounts calculated based upon the revenues or income of the Company or any Company Subsidiary or income or revenues related to any product of the Company or any Company Subsidiary, which is likely to involve the payment of consideration of more than $1,000,000 in the aggregate over the remaining term of such Contract;
(xviii) with any Governmental Entity to which the Company or any Company Subsidiary is a party, other than individual Contracts involving aggregate consideration over the life of the Contract of less than $1,000,000;
(xix) regarding ticketing processes for any racetrack, including in-racetrack ticketing processes and ticketing channel operations;
(xx) relating to a racetrack’s audio and video systems and equipment, including scoreboards, video boards, matrix boards, sound and public address systems and control rooms;
(xxi) under which the Company or any other agreement that relates Company Subsidiary has advanced or loaned any amount of money to any of its officers, directors, employees or consultants, in any way each case with a principal amount in excess of $1,000,000 and in each case has not been repaid prior to the occupancy or use of any of the GFI Leased Real Propertydate hereof; or
(xvixxii) that commits the Company or any agreement of its Affiliates to enter into any of the termination or breach of which or the failure foregoing. Each such Contract in clause (i) through clause (xxii) is referred to obtain consent in respect of constitutes herein as a “Material Adverse EffectContract.”
(b) The agreementsCompany has made available to Parent prior to the date hereof true, commitments, arrangements correct and plans, whether written or oral, listed or required to be listed in Section 2.19(a) complete copies of all of the GFI Disclosure Letter together with Material Contracts.
(c) Each Material Contract is valid and binding on the GFI License Agreements are referred to herein Company or one or more of the Company Subsidiaries (as the “GFI Contracts.” Except as would not have a material impact on the respective businesses of GFI and the GFI Subsidiaries, (icase may be) neither GFI nor any GFI Subsidiary is and, to the Knowledge of GFIthe Company, no each other party isthereto, is in breach or violation of, or in default under, any GFI Contract, (ii) each GFI Contract full force and effect and is a valid and binding agreement of GFI or a GFI Subsidiary, as the case may be, enforceable in accordance with its terms, except as may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and reorganization or similar laws of general applicability relating to or affecting creditors’ rights generally or by general equity equitable principles, (iii) . Except as would not be material to the Knowledge Company or any of GFIthe Company Subsidiaries, there is no event has occurred which would result in a breach or violation ofdefault by the Company or any of the Company Subsidiaries under any of the Material Contracts, or a default under, any GFI Contract (in each case, with or without notice or lapse of time or both), and (iv) each GFI Contract (including all modifications and amendments thereto and waivers thereunder) is in full force and effect with respect to GFI or the GFI Subsidiaries, as applicable, andnor, to the Knowledge of GFIthe Company, is any other party to a Material Contract in breach of or in default under any Material Contract, and no event has occurred that, with respect to the other parties theretolapse of time or the giving of notice or both, and have been delivered would constitute a breach or made available to Parentdefault thereunder by the Company or the Company Subsidiaries.
Appears in 1 contract