Contracts. (i) Neither the Company nor any of its Subsidiaries is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party or by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. (ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of: (A) 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area; (B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries); (C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and (D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreement.
Appears in 3 contracts
Sources: Merger Agreement (Olin Corp), Merger Agreement (Citigroup Inc), Merger Agreement (Chase Industries Inc)
Contracts. (ia) Neither The Selling Entities have made available to WorldCom true and complete copies of all outstanding Contracts Material to ANS. Except as otherwise disclosed on Schedule 3.8(a), all of such Contracts are valid, binding and enforceable in accordance with their terms (assuming the Company nor other parties thereto are bound, as to which no Selling Entity has any reasonable basis to believe otherwise) and in full force and effect, except where any such invalidity or failure to be binding, enforceable or in full force and effect would not have a Material Adverse Effect. Except as otherwise indicated on Schedule 3.8(a), none of its Subsidiaries AOL, ANS or any ANS Entity is, and to the knowledge of AOL, no other party to such Contracts is in violation default thereunder, and no event has occurred which, with or breach of or in default under (nor does there exist any condition that upon without the passage lapse of time or the giving of notice or both both, would cause such constitute a violation default thereunder, except in each case for defaults as would not have, individually or breach of in the aggregate, a Material Adverse Effect.
(b) Except as set forth on Schedule 3.8(b) and except for Contracts which may be canceled by AOL, ANS or default under) any Contract ANS Entity within 30 days without penalty, there are no Contracts to which it ANS is a party or by which it ANS or any ANS Entity is bound that: (i) contain change of its properties control or assets is boundanti-assignment provisions granting to another party or other parties thereto the right to terminate such agreements or take other action adverse to ANS or any ANS Entity upon or following the transactions contemplated by this Agreement, except for violations, breaches which termination or defaults that individually or in the aggregate have not had and adverse action would not reasonably be expected to have a Material Adverse Effect on Effect; or (ii) purport to limit ANS or any ANS Entity from providing any service in any jurisdiction, whether under the Company. The Company ANS name, any ANS Entity name or one WorldCom name or otherwise (except under the name of its Subsidiaries has good and marketable title AOL or any AOL Entity), or grant any exclusive geographic, segment or other rights to any third-party, except where the Company's manufacturing facility and executive and general offices located in Montpelierexistence of which limitation or grant would not, Ohioafter the Closing, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the CompanyEffect.
(iic) Except for Contracts filed in unredacted form as exhibits The Selling Entities have made available to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a WorldCom true and complete list copies of all agreements to which ANS or any ANS Entity is a party which are material to the relationship of ANS or any ANS Entity with international distributors, including those certain license and distributorship agreements with international distributors into which the ANS or an ANS Entity or, to the knowledge of AOL, any licensees thereof have entered (collectively, the "International Distribution Agreements"). Each International Distribution Agreement is valid, binding and enforceable in accordance with its terms (assuming the other parties thereto are bound, as to which no Selling Entity has any reasonable basis to believe otherwise) and in full force and effect, except where any such invalidity or failure to be binding, enforceable or in full force and effect would not have a Material Adverse Effect. Except as set forth on Schedule 3.8(c), to the knowledge of AOL, no party to any International Distribution Agreement is in material violation of the date terms and provisions of this Agreementany such agreement, except for violations which would not have a Material Adverse Effect.
(d) The Selling Entities and ANS Entities have made available to WorldCom true and complete copies of the 10 largest (based upon annualized revenue as estimated by AOL or ANS) contracts and agreements with customers of the network services business of the ANS Network Services Business, which are identified on Schedule 3.8(d). To the knowledge of AOL, each Network Services Agreement is valid, binding and enforceable in accordance with its terms (assuming the other parties thereto are bound, as to which AOL has no reasonable basis to believe otherwise) and in full force and effect, except where any such invalidity or failure to be binding, enforceable or in full force and effect would not have a Material Adverse Effect. To the knowledge of AOL, and except as set forth in Schedule 3.8(d), no party to any such Network Services Agreement is in violation of the Company has delivered terms and provisions thereof, except for violations which would not have a Material Adverse Effect.
(e) Schedule 3.8(e) contains a list of each contract between ANS or any other ANS Entity and a Governmental Entity which is to Parent prior be performed by or through ANS or an ANS Entity and which accounted for at least 3% of the network services revenues during the 12-month period ended June 30, 1997 (the "Government Contracts"), true and complete copies of which have been made available to WorldCom. To the knowledge of AOL, all Government Contracts have been legally awarded and are binding on the parties thereto and are not currently the subject of protest proceedings, except as would not have a Material Adverse Effect.
(f) Except as set forth on Schedule 3.8(f) and except as would not result in a Material Adverse Effect, no notice, consent, waiver or approval is contemplated by or required to or from any party to the date contracts, intellectual property licenses, leases, agreements and arrangements listed on Schedules 3.8(a) through 3.8(e) in connection with the execution and delivery of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Mergertransaction contemplated hereby, could restrict the ability of Parent except any such as would not materially delay or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreementimpede such consummation.
Appears in 3 contracts
Sources: Purchase and Sale Agreement (Worldcom Inc /Ga/), Purchase and Sale Agreement (America Online Inc), Purchase and Sale Agreement (Worldcom Inc /Ga/)
Contracts. (ia) Neither By letter of even date herewith, Seller provided to Buyer a complete and accurate list (the Company nor any of its Subsidiaries is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under“Contracts List”) any Contract to which it is a party or by which it or any of its properties or assets is boundsetting forth, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreementhereof, and the Company has delivered (i) all contracts pursuant to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
which (A) all Contracts to which the Company or any of its Subsidiaries Subsidiary is a party, or that purports to be binding upon party and (B) the Company, any of its Subsidiaries Company or any Subsidiary has non-contingent obligations to the contract counterparty in excess of its Affiliates$100,000 per calendar year, (ii) all contracts pursuant to which (A) the Company or any Subsidiary is a party and (B) the contract counterparty has non-contingent obligations to the Company or any Subsidiary for monthly recurring charges of at least $8,333, (iii) all contracts that contain a covenant restricting limit or purport to limit the ability Company or any Subsidiary in any line of business or with any Person or in any geographic area and (iv) all contracts and agreements relating to Indebtedness of the Company or any Subsidiary, in each case other than Leases and Necessary Leases (the foregoing contracts are referred to herein collectively as the “Contracts”). Except as set forth on the Contracts List, neither Seller, the Company, nor any Subsidiary has received written notice of its Subsidiaries a cancellation of or an intent to cancel any Contract.
(or whichb) Except as set forth on the Contracts List, following assuming the due authorization, execution and delivery by the other parties thereto, each Contract is legal, valid, binding, and enforceable against the other parties thereto, is in full force and effect, and will not cease to be in full force and effect as a result of the consummation of the Mergertransactions contemplated by this Agreement, could restrict nor will the ability consummation of Parent the transactions contemplated by this Agreement constitute a breach or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;default under such Contract.
(Bc) all Except as set forth on the Contracts List, (i) no officer of the Company or has received any notice of its Subsidiaries with any Affiliate of the Company (breach under any Contract, other than any of its Subsidiaries);
(C) all joint venture, partnership such breaches or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or defaults by the Company or any of its Subsidiaries of any debt obligations of any other person (other Subsidiary which would cost less than $250,000 in the aggregate for the Company or any Subsidiary to cure, and (ii) to the knowledge of its Subsidiaries)Seller, including the respective aggregate principal amounts outstanding no other party to any Contract is in breach thereof or default thereunder.
(d) Schedule 4.15(d) sets forth a complete and accurate list of all Seller-Provided Indebtedness.
(e) The Contracts List sets forth, as of the date hereof, (i) all contracts pursuant to which (A) the Company or any Subsidiary is a party and (B) the Company or any Subsidiary has non-contingent obligations to the contract counterparty greater than $25,000 but less than $100,000 per calendar year, and (ii) all contracts pursuant to which (A) the Company or any Subsidiary is a party and (B) the contract counterparty has non-contingent obligations to the Company or any Subsidiary for monthly recurring charges of this Agreementmore than $2,083 but less than $8,333, in each case other than Leases and Necessary Leases.
(f) Con Edison Communications, LLC (“CECLLC”) has timely notified the Port Authority of New York and New Jersey (the “Port Authority”) of CECLLC’s election to extend the term of the letting under the Agreement of Lease Tunnel Duct between the Port Authority and Telergy Network Services, Inc., dated October 24, 2000 (the “Port Authority Lease”), for the first five-year extension period referenced in Section 4(b)(i) of the Port Authority Lease. The Port Authority Lease is a Necessary Lease that is subject to the representations and warranties applicable to Necessary Leases in Section 4.20(c).
Appears in 3 contracts
Sources: Stock Purchase Agreement (RCN Corp /De/), Stock Purchase Agreement (RCN Corp /De/), Stock Purchase Agreement (RCN Corp /De/)
Contracts. (i) Neither the Company nor any of its Subsidiaries is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party or by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(iia) Except for this Agreement and except for Contracts filed in unredacted form as exhibits to the Company Filed SEC DocumentsReports, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date none of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) all Contracts to which the Company or any of its Subsidiaries is a party, party to or bound by any Contract: (i) that purports would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act; (ii) containing covenants binding upon the Company, any of Company or its Subsidiaries or any of its Affiliates, that contain a covenant restricting restrict the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Offer or the Merger, could would materially restrict the ability of Parent the Surviving Corporation or any of its Subsidiaries, including the Company and its SubsidiariesAffiliates) to compete in any business or with any person or in any geographic area;
; (Biii) all Contracts involving the payment or receipt of royalties or other amounts of more than $5,000,000 in the aggregate calculated based upon the revenues or income of the Company or any of its Subsidiaries with or income or revenues related to any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness product of the Company or its Subsidiaries; (iv) with any Affiliate; (v) that would prevent, materially delay or materially impede the Company’s ability to consummate the Offer or the Merger or the other transactions contemplated by this Agreement; or (vi) that was not negotiated and entered into an arm’s length basis. Each such Contract described in clauses (i) through (vi) as well as each Contract listed in Section 3.19(a) or 3.19(b) of the Company Disclosure Schedule is referred to herein as a “Material Contract”.
(b) Each of the Material Contracts is valid and binding on the Company or its Subsidiaries Subsidiaries, as the case may be, and, to the Knowledge of the Company, each other party thereto and is outstanding in full force and effect, except for such failures to be valid and binding or may to be incurred in full force and all guarantees of effect as would not, or would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect. There is no default under any Material Contract by the Company or any of its Subsidiaries and no event has occurred that with the lapse of any debt obligations time or the giving of any other person (other than notice or both would constitute a default thereunder by the Company or any of its Subsidiaries), including in each case except as would not, or would not reasonably be expected to, individually or in the respective aggregate principal amounts outstanding as of the date of this Agreementaggregate, have a Material Adverse Effect.
Appears in 3 contracts
Sources: Merger Agreement (Abbott Laboratories), Merger Agreement (Kos Pharmaceuticals Inc), Merger Agreement (Jaharis Mary)
Contracts. (i) Neither Except as listed on Section 5.1(q) of the Company nor Disclosure Letter, none of the Company or any of its Subsidiaries is in violation a party to or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) bound by any Contract as of the date of this Agreement:
(A) that would be required to which it is a party or be filed by which it the Company with the SEC pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filed;
(B) (1) containing covenants of the Company or any of its properties Subsidiaries purporting to limit in any material respect any line of business, industry or geographical area in which the Company or its Subsidiaries may operate or limiting the right of the Company or any of its Subsidiaries to compete with any Person or levying a fine, charge or other payment for doing so, or (2) limiting the right of the Company or any of its Subsidiaries pursuant to any “most favored nation” or “exclusivity” or “sole sourcing” provisions, in each case of the above other than (a) any such Contracts that may be cancelled without Liability to the Company or its Subsidiaries upon notice of 90 days or less or (b) where any such covenants or other provisions are not material to the Company or any of its Subsidiaries;
(C) that would be required to be disclosed by Section 404(a) of Regulation S-K under the Exchange Act;
(D) that contains a put, call or similar right pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any Person or assets constituting a division or business line of any Person, in each case, other than acquisitions by the Company or any of its Subsidiaries of the foregoing that have a fair market value or purchase price of less than $30 million individually or $50 million in the aggregate;
(E) that contains any standstill or similar agreement pursuant to which the Company or any of its Subsidiaries currently is boundrestricted from acquiring assets or securities of another Person;
(F) other than with respect to any partnership that is wholly owned by the Company or any wholly owned Subsidiary of the Company, any partnership, joint venture, joint product development (other than a development agreement for any customer entered into in the ordinary course of business) or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any joint product development, partnership or joint venture or that involves a sharing of revenues, profits, losses, costs or liabilities and is material to the Company and its Subsidiaries, taken as a whole, or in which the Company owns more than a 15% voting or economic interest, or any interest valued at more than $30 million without regard to percentage voting or economic interest;
(G) relating to or evidencing Indebtedness in excess of $20 million individually or $40 million in the aggregate;
(H) that grants any rights of first refusal, rights of first negotiation or other similar rights to any Person with respect to the sale of any material assets of the Company and its Subsidiaries, taken as a whole, or of any Subsidiary or material business of the Company and its Subsidiaries;
(I) (1) entered into after December 31, 2017, and not yet consummated, for the acquisition or disposition, directly or indirectly (by scheme of arrangement, merger or otherwise), of assets or capital stock or other equity interests of any Person for aggregate consideration under such Contract in excess of $50 million individually, or $100 million in the aggregate, other than purchases of inventory or similar assets in the ordinary course of business or (2) for any acquisition, directly or indirectly (by scheme of arrangement, merger or otherwise), of assets or capital stock or other equity interests of any Person, pursuant to which the Company or any of its Subsidiaries has continuing “earn out” or other similar contingent payment obligations (but excluding indemnification obligations with respect to breaches of representations, warranties or covenants);
(J) that is, except for violations, breaches or defaults that individually or licenses granted to customers of the Company in the ordinary course of business, (1) an agreement pursuant to which the Company or any of its Subsidiaries is licensed or is otherwise permitted by a third party to use any material Intellectual Property (other than any “commercially available off-the-shelf software package,” or other software licensed pursuant to a software “shrink wrap,” “click wrap,” or “click-through” license) or (2) an agreement pursuant to which a third party is licensed or is otherwise permitted to use any material Intellectual Property owned by the Company or any of its Subsidiaries, in each case of clauses (1) and (2) where such agreement is material to the business of the Company and its Subsidiaries, taken as a whole; and
(K) that by its express terms calls for aggregate payment or receipt by the Company and its Subsidiaries under such Contract of more than $25 million over the annual term of such Contract and is not terminable at will by any party upon ninety (90) days’ notice or less with no liability or further obligation thereunder (other than this Agreement, Contracts solely between or among any of the Company and any of its wholly-owned Subsidiaries, Contracts that are subject of another subsection of this Section 5.1(q) or any Material Leases); (each such Contract required to be listed on Section 5.1(q) of the Company Disclosure Letter (whether or not so listed) is referred to herein as a “Material Contract”).
(ii) Each of the Material Contracts, Customer Contracts, Supplier Agreements and Distributor Contracts is valid and binding on the Company and each of its Subsidiaries that is a party thereto and, to the Knowledge of the Company, each other party thereto and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect that have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelierhave, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have aggregate, a Company Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC DocumentsEffect. There is no default under any Material Contract, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this AgreementCustomer Contract, and the Company has delivered to Parent prior to the date of this Supplier Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or Distributor Contract by the Company or any of its Subsidiaries that is a party thereto, or to the Knowledge of any debt obligations of the Company any other person (other than party thereto, and no event has occurred that with notice or lapse of time or both would constitute a default thereunder by the Company or any of its Subsidiaries)Subsidiaries that is a party thereto, including or to the respective aggregate principal amounts outstanding as Knowledge of the Company any other party thereto, except in each case as is not and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Complete and correct copies of each Material Contract, Customer Contract and Supplier Contract and any material amendments (in each case, excluding purchase orders in the ordinary course of business) thereto have been provided or made available to Buyer prior to the date hereof.
(iii) For purposes of this Agreement.:
Appears in 3 contracts
Sources: Bid Conduct Agreement, Bid Conduct Agreement (ARRIS International PLC), Bid Conduct Agreement (CommScope Holding Company, Inc.)
Contracts. Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities (a) 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 any 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) or (b) which, as of the date hereof, (i) Neither is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) involves aggregate expenditures in excess of $50,000 per annum, (iii) involves aggregate expenditures in excess of $50,000 and was not entered into in the ordinary course of business, (iv) contains “take or pay” provisions applicable to the Company nor or any Company Subsidiary, (v) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future affiliates, or which restricts the conduct of any line of business by the Company, any of the Company’s current or future affiliates, any Company Subsidiary or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any respect, (vi) would reasonably be expected to prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions or (vii) is necessary for the conduct of the ADS Business as currently conducted but constitutes an Excluded Asset. Each contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract”. Each Company Agreement relating to the ADS Business, the Acquired Assets or the Retained Liabilities is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and in full force and effect, and the Company and each Company Subsidiary has performed all obligations required to be performed by it under each such Company Agreement and, to the Company’s knowledge, each other party to each such Company Agreement has performed all obligations required to be performed by it under such Company Agreement, except as would not, or would not be reasonably expected to, individually or in the aggregate, (1) prohibit or materially delay the consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its Subsidiaries is material obligations under this Agreement or (3) result in a Company Material Adverse Effect. None of the Company or any Company Subsidiary knows of, or has received notice of, any violation or breach of or in default under (nor does there exist or any condition that upon which with the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract Company Agreement relating to which it is a party the ADS Business, the Acquired Assets or by which it or any of its properties or assets is bound, the Retained Liabilities except for violations, breaches violations or defaults that would not, or would not be reasonably expected to, individually or in the aggregate have not had and would not reasonably be expected to have aggregate, (1) prohibit or materially delay consummation of the Offer, the Merger or any of the other Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or (3) result in a Company Material Adverse Effect on the CompanyEffect. The Company or one of its Subsidiaries has good and marketable title delivered to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually Purchaser or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits provided to the Company Filed SEC DocumentsPurchaser for review, Section 3.01(j)(ii) of prior to the Company Disclosure Schedule sets forth a true and complete list as of the date execution of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including of all amendments and modifications thereto) of:
(A) 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 restricting the ability of the Company Material Contracts or any of its Subsidiaries (other Company Agreements relating to the ADS Business, the Acquired Assets or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) Retained Liabilities required to compete be disclosed in any business or with any person or in any geographic area;
(B) all Contracts Section 3.13 of the Company Disclosure Schedule, which are not filed as exhibits to the Company SEC Documents and the Company Material Contracts or any of its Subsidiaries with any Affiliate other Company Agreements required to be disclosed in Section 3.13 of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements Disclosure Schedule filed as exhibits to which the Company or any SEC Documents are true, complete and correct copies of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreementsuch contracts.
Appears in 3 contracts
Sources: Merger Agreement (New 360), Merger Agreement (Point 360), Merger Agreement (DG FastChannel, Inc)
Contracts. (i) Neither As of the Company nor date hereof, except as filed as exhibits to Parent SEC Filings or as disclosed in Section 3.13 of the Parent Disclosure Schedule, none of Parent or any of its Subsidiaries is a party to or bound by any Contract that (1) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), (2) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to Parent or any of its Subsidiaries, or which restricts the conduct of any line of business by Parent or any of its Subsidiaries or any geographic area in which Parent or any of its Subsidiaries may conduct business, in each case in any material respect or (3) which would prohibit or materially delay the consummation of the Merger or any of the transactions contemplated by this Agreement. As of the date hereof, each Contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Parent Disclosure Schedule, is referred to herein as a “Parent Material Contract.” Each Parent Material Contract is valid and binding on Parent and each of its Subsidiaries party thereto and, to Parent’s knowledge, each other party thereto, and in full force and effect, and Parent and each of its Subsidiaries has in all respects performed all obligations required to be performed by it to the date hereof under each Parent Material Contract and, to Parent’s knowledge, each other party to each Parent Material Contract has in all respects performed all obligations required to be performed by it under such Parent Material Contract, except as would not, individually or in the aggregate, have a Material Adverse Effect. As of the date hereof, none of Parent or any of its Subsidiaries has received any written notice of any violation or breach of or in default under (nor does there exist or any condition that upon which with the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party or by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Parent Material Adverse Effect on the CompanyContract. The Company or one of its Subsidiaries Parent has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits made available to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as copies of the date of this Agreement, and the Company has delivered to each Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this AgreementMaterial Contract.
Appears in 3 contracts
Sources: Merger Agreement (RespireRx Pharmaceuticals Inc.), Merger Agreement (Cortex Pharmaceuticals Inc/De/), Merger Agreement (Anesiva, Inc.)
Contracts. (ia) As of the date of this Agreement, there are no Contracts that are material contracts (as defined in Item 601(b)(10) of Regulation S-K) with respect to Merger Partner (assuming Merger Partner was subject to the requirements of the Exchange Act), other than those Contracts identified in Section 3.11(a) of the Merger Partner Disclosure Schedule.
(b) Neither Merger Partner nor any of its Subsidiaries has entered into any transaction that would be subject to proxy statement disclosure pursuant to Item 404 of Regulation S-K (assuming Merger Partner was subject to the Company requirements of the Exchange Act), other than as disclosed in Section 3.11(b) of the Merger Partner Disclosure Schedule.
(c) Neither Merger Partner nor any of its Subsidiaries is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party or by to any agreement under which it a third party would be entitled to receive a license or any other right to Merger Partner Intellectual Property as a result of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Companytransactions contemplated by this Agreement.
(iid) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii3.11(d) of the Company Merger Partner Disclosure Schedule sets forth a true and complete list lists the following Contracts of Merger Partner in effect as of the date of this Agreement, and :
(i) any Contract (or group of related Contracts) for the Company has delivered to Parent prior to purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than 180 days from the date of this Agreement trueAgreement, complete and correct copies (including all amendments and modifications theretoB) of:which involves an aggregate of more than $150,000 or (C) in which Merger Partner or any of its Subsidiaries has granted manufacturing rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any products or territory or has agreed to purchase a minimum quantity of goods or services or has agreed to purchase goods or services exclusively from a particular party;
(Aii) all Contracts to any Contract under which the consequences of a default or termination would reasonably be likely to have a Merger Partner Material Adverse Effect;
(iii) any Contract that could reasonably be expected to have the effect of prohibiting or impairing the conduct of the business of Merger Partner or any of its Subsidiaries or Public 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic areaas currently conducted;
(Biv) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to Contract under which the Company Merger Partner or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreementsrestricted from selling, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company licensing or otherwise distributing any of its Subsidiaries is outstanding technology or may be incurred and all guarantees of products, or by the Company providing services to, customers or potential customers or any class of its Subsidiaries customers, in any geographic area, during any period of time or any segment of the market or line of business;
(v) any dealer, distribution, joint marketing, joint venture, joint development, partnership, strategic alliance, collaboration, development agreement or outsourcing arrangement;
(vi) any Contract for the conduct of research studies, pre-clinical or clinical studies, manufacturing, distribution, supply, marketing or co-promotion of any debt obligations products in development by or which has been or which is being marketed, distributed, supported, sold or licensed out, in each case by or on behalf of any other person (other than the Company Merger Partner or any of its Subsidiaries; and
(vii) any Contract that would entitle any third party to receive a license or any other right to Intellectual Property of Public Company or any of Public Company’s Affiliates following the Closing.
(e) Merger Partner has made available to Public Company a complete and accurate copy of each Contract listed in Sections 3.10(a), including the respective aggregate principal amounts outstanding as 3.10(h), 3.10(i), 3.11(a), 3.11(b) and 3.11(d) of the date Merger Partner Disclosure Schedule. With respect to each Contract so listed: (i) the Contract is legal, valid, binding and enforceable and in full force and effect against Merger Partner and/or its Subsidiaries party thereto, as applicable, and, to the knowledge of Merger Partner, against each other party thereto, as applicable, subject to the Bankruptcy and Equity Exception; (ii) the Contract will continue to be legal, valid, binding and enforceable and in full force and effect against Merger Partner and/or its Subsidiaries party thereto, as applicable, and, to the knowledge of Merger Partner, against each other party thereto, immediately following the Closing in accordance with the terms thereof as in effect immediately prior to the Closing (other than any such Contracts that expire or terminate before such time in accordance with their terms and not as a result of a breach or default by Merger Partner or its Subsidiaries), in each such case subject to the Bankruptcy and Equity Exception and except to the extent the failure to be in full force and effect, individually or in the aggregate, would not reasonably be likely to have a Merger Partner Material Adverse Effect; and (iii) none of Merger Partner, its Subsidiaries nor, to the knowledge of Merger Partner, any other party, is in breach or violation of, or default under, any such Contract, and no event has occurred, is pending or, to the knowledge of Merger Partner, is threatened, which, with or without notice or lapse of time, or both, would constitute a breach or default by Merger Partner, its Subsidiaries or, to the knowledge of Merger Partner, any other party under such Contract, except for such breaches, violations or defaults that, individually or in the aggregate, have not had, and are not reasonably likely to have, a Merger Partner Material Adverse Effect.
(f) For purposes of this Agreement, the term “Contract” shall mean, with respect to any person, any written, oral or other agreement, contract, subcontract, lease (whether for real or personal property), mortgage, understanding, arrangement, instrument, note, option, warranty, license, sublicense, insurance policy, benefit plan or commitment or undertaking of any nature to which such person is a party or by which such person or any of its assets are bound under applicable law.
Appears in 3 contracts
Sources: Merger Agreement (Amergent Hospitality Group, Inc), Merger Agreement (Chanticleer Holdings, Inc.), Merger Agreement (Arsanis, Inc.)
Contracts. (i) Neither the Company Premcor nor any of its Subsidiaries is a party to or bound by any contract, arrangement, commitment or understanding (whether written or oral) (A) with respect to the employment of any directors, officers or employees other than in violation or breach the ordinary course of or in default under business consistent with past practice, (nor does there exist any condition that B) that, upon the passage consummation or stockholder approval of time the transactions contemplated by this Agreement, will (either alone or upon the giving occurrence of notice any additional acts or both would cause such a violation events) result in any payment (whether of severance pay or breach otherwise) becoming due from Valero, Premcor, the Surviving Corporation or any of or default undertheir respective Subsidiaries, (C) any Contract to which it that is a party “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) to be performed after the date of this Agreement that has not been filed or incorporated by which it reference in the Premcor SEC Documents filed prior to the date of this Agreement, or (D) that materially restricts the conduct of any line of business by Premcor or any of its properties Subsidiaries (including geographical restrictions) or assets upon consummation of the Merger will materially restrict the ability of Valero, the Surviving Corporation or any of their respective Subsidiaries to engage in any line of business (including geographical restrictions). Each contract, arrangement, commitment or understanding of the type described in this Section 4.1(j), whether or not set forth in the Premcor Disclosure Schedule or in such Premcor SEC Documents, is boundreferred to herein as a “Premcor Contract.”
(ii) (A) Each Premcor Contract is valid and binding on Premcor and any of its Subsidiaries that is a party thereto, as applicable, and in full force and effect, (B) Premcor and each of its Subsidiaries has in all material respects performed all obligations required to be performed by it to date under each Premcor Contract, except for violationswhere such noncompliance, breaches or defaults that either individually or in the aggregate have not had and aggregate, would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one Premcor, and (C) neither Premcor nor any of its Subsidiaries knows of, or has good and marketable title to received notice of, the Company's manufacturing facility and executive and general offices located in Montpelierexistence of any event or condition that constitutes, Ohioor, free and clear after notice or lapse of all Liens time or both, will constitute, a material default on the part of Premcor or any of its Subsidiaries under any such Premcor Contract, except for Lienswhere such default, defects in title, easements, restrictive covenants and similar encumbrances that either individually or in the aggregate have not had and aggregate, would not reasonably be expected to have a Material Adverse Effect on the CompanyPremcor.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Premcor Inc), Merger Agreement (Valero Energy Corp/Tx)
Contracts. (ia) Neither As of the Company date of this Agreement, except as set forth as an exhibit to the Parent SEC Documents and on Section 4.11(a) of the Parent Disclosure Letter, neither Parent nor any of its Subsidiaries is a party to or bound by any:
(i) 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 Parent) in excess of $4,000,000;
(ii) Non-competition agreements or any other agreements or arrangements that materially limit or otherwise materially restrict Parent or any of its Subsidiaries or any of their respective Affiliates or any successor thereto or that, to Parent’s Knowledge, would, after the Effective Time, limit or restrict Parent or any of its Subsidiaries (including the Surviving Corporation) or any successor thereto, in each case from engaging or competing in any line of business or in any geographic area, which agreement or arrangements would reasonably be expected to materially limit, materially restrict or materially conflict with the business of Parent and its Subsidiaries, taken as a whole (including for purposes of such determination, the Surviving Corporation and its Subsidiaries), after giving effect to the Merger;
(iii) Contracts required to be filed as an exhibit to Parent’s Annual Report on Form 10-K pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(iv) Contracts, including Parent Oil and Gas Agreements, where Parent or any of its Subsidiaries has received or expects to receive $4,000,000 or more in revenues pursuant to such agreements in the current fiscal year;
(v) Contracts with respect to the receipt of any goods and services involving a payment of $4,000,000 or more in the current fiscal year;
(vi) Joint venture, alliance, partnership or limited liability company agreements or similar Contracts relating to the formation, creation, operation, management or control of any joint venture, alliance, partnership or limited liability company that (A) is material to Parent, its Subsidiaries or any of the Oil and Gas Properties of Parent or any of its Subsidiaries; (B) is material to any investment in, or other commitment to, any Related Entity of Parent; or (C) would reasonably be expected to require Parent or its Subsidiaries to make expenditures in excess of $4,000,000 or more per annum; or
(vii) Contracts that would prevent, materially delay or materially impede the consummation of the transactions contemplated by this Agreement.
(b) All Contracts to which Parent or any of its Subsidiaries is a party to or bound by as of the date of this Agreement that are either (i) of the type described in clause (a) above or (ii) material Parent Oil and Gas Agreements relating to Oil and Gas Properties of Parent and its Subsidiaries are referred to herein as the “Parent Material Contracts.” Except, in each case, as has not, and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, (i) all Parent Material Contracts are valid and binding on Parent and/or the relevant Subsidiary of Parent that is a party thereto and, to Parent’s Knowledge, each other party thereto, subject to the Bankruptcy and Equity Exception, (ii) all Parent Material Contracts are in full force and effect, (iii) Parent and each of its Subsidiaries has performed all material obligations required to be performed by them under the Parent Material Contracts to which they are parties, (iv) to Parent’s Knowledge, each other party to a Parent Material Contract has performed all material obligations required to be performed by it under such Parent Material Contract and (v) no party to any Parent Material Contract has given Parent or any of its Subsidiaries written notice of its intention to cancel, terminate, change the scope of rights under or fail to renew any Parent Material Contract and neither Parent nor any of its Subsidiaries, nor, to Parent’s Knowledge, any other party to any Parent Material Contract, has repudiated in writing any material provision thereof. Neither Parent nor any of its Subsidiaries has Knowledge of, or has received written notice of, any violation or breach of or in default under (nor does there exist or any condition that upon which with the passage of time or the giving of notice or both would cause such a violation or breach of or default under or permit termination, modification or acceleration under) any Parent Material Contract or any other Contract to which it Parent or any of its Subsidiaries is a party or by which it Parent, any of its Subsidiaries or any of its their respective material properties or assets is bound, except for violations, breaches violations or defaults that are not, individually or in the aggregate have not had and would not aggregate, reasonably be expected likely to have result in a Parent Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the CompanyEffect.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Contango Oil & Gas Co), Merger Agreement (Crimson Exploration Inc.)
Contracts. (ia) Neither Other than any Contract filed as an exhibit to the Company SEC Documents, neither the Company nor any of its Subsidiaries is in violation a party to or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) bound by any Contract that is of a nature required to which it is be filed as an exhibit to a party report or by which it filing under the Securities Act or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the CompanyExchange Act. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii3.15(a) of the Company Disclosure Schedule Letter sets forth a true and complete list as of each of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) all following Contracts to which the Company or any of its Subsidiaries is a party, party or that purports to be binding upon by which the Company, Company or any of its Subsidiaries or any of their assets or businesses are bound (and any amendments, supplements and modifications thereto):
(i) any Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) any Contract that is a non-competition Contract or other Contract that (A) purports to limit in any material respect either the Company’s or its Subsidiaries’ ability to compete in any type of business in which the Company or any of the Subsidiaries of the Company (or, after the Effective Time, Parent or any of its Subsidiaries) or any of their respective Affiliates, that contain a covenant restricting may engage or the ability manner or geographic area in which any of them may so engage in any business, (B) would require the disposition of any material assets or line of business of the Company or any of its Subsidiaries (or, after the Effective Time, Parent or which, following any of its Subsidiaries) or any of their respective Affiliates as a result of the consummation of the Mergertransactions contemplated by this Agreement, could restrict (C) is a Contract that grants “most favored nation” or similar status that, following the ability of Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and or any of its Subsidiaries; (D) to compete contains any “exclusivity” or similar provision or otherwise prohibits or limits, in any business or with any person or in any geographic area;
(B) all Contracts material respect, the right of the Company or any of its Subsidiaries with (or, after the Effective Time, would prohibit or limit, in any Affiliate material respect, the right of the Company (other than Parent or any of its Subsidiaries) to make, sell, market, advertise or distribute any products or services or use, transfer, license, distribute or enforce any of their respective Intellectual Property rights; (E) obligates the Company or any of its Subsidiaries to purchase or obtain a minimum or specified amount of any product or service from any Person; or (F) that involves the obligation or potential obligation of the Company or any of its Subsidiaries to make any “earn-out” or similar payments to any Person;
(iii) any Contract under which any Acquired Company has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness for borrowed money in excess of $2,500,000 (except for such indebtedness between the Acquired Companies or guaranties by any Acquired Company of indebtedness of any Acquired Company);
(Civ) all any Contract relating to any material joint venture, partnership venture or other similar agreements to partnership;
(v) any Contract under which the Company or any of its Subsidiaries made or received payments of more than $5,000,000 during the fiscal year ended August 31, 2014 or reasonably expects to make or receive payments of more than $5,000,000 for the fiscal year ending August 31, 2015 and, in either case, is not terminable upon notice of 30 days or less without penalty;
(vi) any Contract that restricts or prohibits the Company or any Subsidiary of the Company (or after the Effective Time would restrict or prohibit Parent or any of its Subsidiaries) from hiring or soliciting any individual to perform employment or consulting services;
(vii) any Contract relating to any material dealer, reseller, remarketer, distribution, joint marketing, affiliate or development, delivery, manufacturing or similar agreement under which the Company or any of its Subsidiaries made payments of more than $5,000,000 during the fiscal year ended August 31, 2014;
(viii) any Contract that contains a party standstill or similar restriction enforceable against the Company or any of its Subsidiaries;
(ix) any Contract for the lease of real property by the Company or any of its Subsidiaries that by its terms calls for aggregate annual rent payments of more than $1,000,000 by the Company and its Subsidiaries;
(x) any employment Contract that requires aggregate payments with respect to annual salary and target bonus in excess of $1,000,000 on an annual basis and is not terminable without cause by the Company or any of its Subsidiaries by notice of not more than 30 days and without any termination payment or penalty, or any severance Contract;
(xi) any collective bargaining agreement or other Contract with any labor organization, union or association;
(xii) any Contract that grants any rights of first refusal, rights of first negotiation or other similar rights to any person with respect to any material asset of the Company and its Subsidiaries;
(xiii) any Contract that relates to any material interest rate, derivatives or hedging transaction (including all amendments and modifications theretowith respect to commodities); and;
(Dxiv) all loan agreementsany Contract that relates to the acquisition or disposition of any business, credit agreementscapital stock or assets (whether by merger, notessale of stock, debenturessale of assets or otherwise), bondsother than a Contract to purchase goods or services in the ordinary course of business, mortgagesunder which the Company or any of its Subsidiaries has any outstanding contingent or other obligations that are material to the Company and its Subsidiaries, indentures and other Contracts taken as a whole;
(collectivelyxv) any Contract in which the Company purports to indemnify or hold harmless any director, "debt obligations") pursuant to which any indebtedness officer or employee of the Company or any of its Subsidiaries (other than the Company Constituent Documents or organizational documents of the Company’s Subsidiaries); and
(xvi) any Contract to which any holder of capital stock or other securities of the Company is outstanding a party or may that is required to be incurred disclosed by the Company pursuant to Item 404 of Regulation S-K under the Securities Act. Each such Contract as described in this Section 3.15(a) or Section 3.18(c) or listed in Section 3.15(a) or Section 3.18(c) of the Company Disclosure Letter, a “Material Contract”.
(b) True and complete copies of all guarantees Material Contracts of the Company and its Subsidiaries have been made available to Parent in accordance with all applicable Laws. For purposes of this Agreement, “Contract” means any note, bond, mortgage, indenture, contract, arrangement, undertaking, purchase order, bid, agreement, lease or other instrument or obligation (whether written or oral), together with all amendments thereto. Each Material Contract 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, and is in full force and effect, except in each case for such failures to be valid and binding or to be in full force and effect that, individually or in the aggregate, have not had, and could not reasonably be expected to have, a Material Adverse Effect. Except, individually or in the aggregate, as has not had, and could not reasonably be expected to have, a Material Adverse Effect, and except as set forth in Section 3.15(b) of the Company Disclosure Letter, there is no default under any Contract by the Company or any of its Subsidiaries party thereto or, to the knowledge of any debt obligations of the Company, any other person (other than 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)Subsidiaries party thereto or, including to the respective aggregate principal amounts outstanding as knowledge of the date of this AgreementCompany, any other party thereto.
Appears in 2 contracts
Sources: Merger Agreement (Ingredion Inc), Merger Agreement (Penford Corp)
Contracts. (a) As of the date hereof, the exhibit index to the Company's most recently filed Annual Report on Form 10-K, as supplemented by Schedule 3.12(a) of the Company Disclosure Schedule, includes each contract (including all amendments thereto) to which the Company or any Company Subsidiaries is a party or by which any of them is bound and (i) which would be required, pursuant to the Exchange Act and the rules and regulations thereunder, to be filed as an exhibit to an Annual Report of the Company on Form 10-K, a Quarterly Report of the Company on Form 10-Q or a Current Report of the Company on Form 8-K (without regard to whether such report is now due to be filed) or (ii) involves payments by or to the Company or any Company Subsidiary in excess of $1 million in calendar year 2001 or any subsequent calendar year (collectively, the "Company Contracts"). Schedule 3.12(a) of the Company Disclosure Schedule indicates which of the Company Contracts have terminated, and which of the Company Contracts are scheduled to terminate in accordance with their respective terms, in 2001.
(b) Each Company Contract is in full force and effect, constitutes a valid and binding obligation of and is legally enforceable in accordance with its terms against the Company or Company Subsidiary, as applicable and, to the knowledge of the Company, (i) the Company Contracts are valid, binding and enforceable obligations of the other parties thereto, except as such enforceability may be subject to the effects of any applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar Laws affecting creditors' rights generally or subject to the effects of general equitable principles (whether considered in a proceeding in equity or at law); (ii) the Company and/or each Company Subsidiary, as the case may be, has complied with all of the provisions of such Company Contracts and is not in default thereunder, and there has not occurred any event which (whether with or without notice, lapse of time, or the happening or occurrence of any other event) would constitute such a default, and the execution of this Merger Agreement by the Company and its performance hereunder will not cause, or result in, a breach or default under any Company Contract; (iii) there has not been (A) any failure by the Company or any Company Subsidiary or, to the knowledge of the Company or any Company Subsidiary, any other party to any such Company Contract to comply with all material provisions thereof, (B) any default by the Company or any Company Subsidiary or, to the knowledge of the Company or any Company Subsidiary, any other party thereunder or (C) to the knowledge of the Company (1) any cancellation thereof in writing which has not been cured or (2) any outstanding dispute thereunder which has not been cured.
(c) Neither the Company nor any of its Subsidiaries is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it Company Subsidiary is a party guarantor or by which it otherwise liable for any liability or obligation (including Indebtedness) of any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Portfolio Company or one other Person other than a wholly owned subsidiary of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(iid) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC DocumentsNo officer, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) all Contracts to which the Company director 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 restricting the ability significant stockholder of the Company or any Company Subsidiary, or affiliate of its Subsidiaries (such officer, director or whichsignificant stockholder, following is currently a party to any transaction, understanding or commitment with the consummation of the Merger, could restrict the ability of Parent Company or any Company Subsidiary, including, without limitation, any Agreement providing for the employment of, furnishing of its Subsidiariesservices by, including the Company and its Subsidiaries) to compete in any business rental of Assets from or with any person or in any geographic area;
(B) all Contracts to, requiring payments on a change of control of the Company or otherwise requiring payments to, any such officer, director, significant stockholder or affiliate, except for the payment of its Subsidiaries with any Affiliate benefits to officers or directors in the Ordinary Course of Business.
(e) Neither the Company (other than nor any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries Subsidiary is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of contract with the Company United States government or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of to any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreementmaterial Government Contract.
Appears in 2 contracts
Sources: Merger Agreement (Motient Corp), Merger Agreement (Rare Medium Group Inc)
Contracts. (i) Neither the Company nor any of its Subsidiaries is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party or by which it or any of its properties or assets is boundSchedule 4.24 lists, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) all Contracts to which the Company or any of its Subsidiaries is a party, or party and that purports to be binding upon fall within any of the following categories:
(a) Contracts not entered into in the ordinary course of the Company's and its Subsidiaries' business other than those that are not material to the Company's or its Subsidiaries' business;
(b) joint venture, any of its Subsidiaries or any of its Affiliates, that contain a covenant restricting partnership and similar agreements;
(c) Contracts containing covenants purporting by their express terms to limit the ability freedom of the Company or its Subsidiaries to compete in any line of business in any geographic area or to hire any individual or group of individuals;
(d) Contracts that, after the Effective Time, would have the effect of limiting the freedom of Parent or its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including other than the Company and its Subsidiaries) to compete in any line of business or with any person or in any geographic areaarea or to hire any individual or group of individuals;
(Be) all Contracts with any labor organization or union;
(f) Contracts providing for "earn-outs," "savings guarantees," "performance guarantees" (other than performance guarantees for wholly owned Subsidiaries of the Company) or other contingent payments by the Company or its Subsidiaries involving more than $50,000 over the term of the Contract; and
(g) Contracts involving payments to or by the Company and its Subsidiaries taken as a whole, or which are reasonably likely to result in the incurrence by the Company and its Subsidiaries, taken as a whole, of liabilities, of at least $5,000,000 per year. All such Contracts are valid and binding obligations of the Company or any of its Subsidiaries with any Affiliate Subsidiaries, as the case may be, and, to the knowledge of the Company, the valid and binding obligation of each other party thereto, except such Contracts that, if not so valid and binding, individually or in the aggregate, have not had and could not reasonably be expected to have a Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which Material Adverse Effect. Neither the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreementsSubsidiaries, credit agreementsnor, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness the knowledge of the Company or Company, any of its Subsidiaries other party thereto, is outstanding or may be incurred and all guarantees in violation of or by in default in respect of, nor has there occurred an event or condition, that with the Company passage of time or any giving of its Subsidiaries of any debt obligations of any other person notice (other than the Company or any of its Subsidiariesboth), including would constitute a default under or permit the respective aggregate principal amounts outstanding as of termination of, any such Contract except such violations or defaults under or terminations that, individually or in the date of this Agreementaggregate, have not had and could not reasonably be expected to have a Company Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Andrew Corp), Agreement and Plan of Merger (Allen Telecom Inc)
Contracts. (ia) Neither Except (v) for this Agreement, (w) for the Company Contracts filed as exhibits to the Parent SEC Reports filed prior to the date of this Agreement, (x) for Parent Plans and Parent Stock Plans, (y) for any contracts that are terminable (and will continue to be terminable after the Effective Time) by Parent or any of its subsidiaries party thereto on no more than sixty (60) days’ notice without material penalty or other liability or (z) as set forth in Section 4.9 of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries subsidiaries, as of the date hereof, is party to or bound by any Contract that:
(i) is required to be filed by Parent as a “material contract” pursuant to Item 601 of Regulation S-K under the Securities Act;
(ii) contains covenants binding upon Parent or any of its subsidiaries, in each case, that are material to Parent and its subsidiaries, taken as a whole, that (A) restrict the ability (other than to the extent described in clause (C)(1) below) of Parent (or, following the Effective Time, the Surviving Company or its subsidiaries) or any of its subsidiaries or Affiliates to engage or compete in any business or sell, supply, acquire, license or distribute any product or service, in each case, in any market or geographic area, with any Person or during any period of time, or that would require the disposition of any material assets or line of business of Parent or its subsidiaries, or, in each case, after the Effective Time, the Surviving Company or its subsidiaries, (B) (1) grant “most favored nation” status to another Person and (2) pursuant to such Contract Parent or any of its subsidiaries collectively received, during the twelve (12) month period ended December 2, 2017, more than $50,000,000 or (C) (1) include exclusive or preferred purchasing arrangements or similar provisions expressly obligating Parent or any of its subsidiaries to obtain all of its requirements for, or a minimum quantity of, certain merchandise exclusively from any vendor for merchandise resold by Parent or any of its subsidiaries, except, in each case, any purchase orders entered into in the ordinary course of business and (2) pursuant to such Contract Parent or any of its subsidiaries collectively paid, during the twelve (12) month period ended December 2, 2017, more than $50,000,000;
(iii) is a services agreement, equipment lease, logistics agreement, information technology agreement or agreement related to software (other than any architectural or construction-related Contract) in connection with which or pursuant to which Parent or any of its subsidiaries collectively paid, during the twelve (12) month period ended December 2, 2017, more than $50,000,000 to any Person;
(iv) other than with respect to any partnership or limited liability company that is wholly owned by Parent or any of its wholly-owned subsidiaries, is a joint venture, partnership, limited liability company or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any joint venture, partnership, limited liability company or other similar Person, in each case, that is material to Parent and its subsidiaries, taken as a whole;
(v) is an indenture, credit agreement, loan agreement, security agreement, guarantee, bond or any other Contract relating to indebtedness for borrowed money or the deferred purchase price for property, in each case having an outstanding amount in excess of $5,000,000 individually, other than any such Contract between or among any of Parent and any of its wholly-owned subsidiaries;
(vi) prohibits the payment of dividends or distributions in respect of the capital stock of Parent or any of its subsidiaries, prohibits the pledging of the capital stock of Parent or any subsidiary of Parent, prohibits the issuance of guarantees by Parent or any subsidiary of Parent or grants any rights of first refusal or rights of first offer or similar rights or that limits or proposes to limit the ability of Parent or any of its subsidiaries or Affiliates to sell, transfer, pledge or otherwise dispose of any assets or businesses, in each case, that is material to Parent and its subsidiaries, taken as a whole;
(vii) is an agreement under which Parent or any of its subsidiaries has any obligations to make a capital contribution to, or other investment in the securities of, any Person (other than (A) to Parent or any of its wholly-owned subsidiaries, (B) extensions of credit in the ordinary course of business consistent with past practice and (C) investments in marketable securities in the ordinary course of business), in each case, that is material to Parent and its subsidiaries, taken as a whole;
(viii) is an agreement with respect to any acquisition or divestiture (other than, for the avoidance of doubt, for acquisitions or dispositions of inventory, merchandise, products, services, properties and assets in the ordinary course of business) pursuant to which Parent or any of its subsidiaries has continuing indemnification, “earn-out” or other contingent payment obligations, in each case, that would reasonably be expected to result in payments in excess of $10,000,000;
(ix) is between Parent or any of its subsidiaries, on the one hand, and any director or officer of Parent or any Person beneficially owning five percent (5%) or more of the outstanding shares of Parent Common Stock or any of their respective Affiliates, on the other hand, except for any Parent Plan;
(x) contains a standstill or similar agreement that will be in effect as of the Closing pursuant to which Parent or any of its subsidiaries has agreed not to acquire assets or securities of another Person;
(xi) contains a put, call or similar right pursuant to which Parent or any of its subsidiaries could be required to purchase or sell, as applicable, any equity interests of any Person or assets, in each case with a value in excess of $10,000,000;
(xii) is a Parent Material Real Property Lease;
(xiii) is a Contract (including purchasing agreements, group purchasing agreements and excluding work orders, statements of work, purchase orders and similar contracts) pursuant to which Parent or any of its subsidiaries collectively paid, during the twelve (12) month period ended December 2, 2017, more than $50,000,000 to any Person; or
(xiv) is with any of Parent’s top ten (10) commercial payors (measured by prescription revenue of Parent during the twelve (12) month period ended on December 2, 2017) (the “Parent Key Payors”).
(b) Each Contract set forth or required to be set forth in Section 4.9 of the Parent Disclosure Schedule or filed as an exhibit (or incorporated by reference) to the Parent SEC Reports filed prior to the date of this Agreement as a “material contract” pursuant to Item 601 of Regulation S-K under the Securities Act (and to the extent so disclosed as a “material contract” under Regulation S-K in force as of the date hereof) is referred to herein as a “Parent Material Contract.” Each of the Parent Material Contracts is valid and binding on Parent or its subsidiaries party thereto, as applicable, and, to the knowledge of Parent, each other party thereto, and is in violation full force and effect, subject to the Bankruptcy and Equity Exception, except (i) to the extent that any Parent Material Contract expires in accordance with its terms and (ii) for such failures to be valid and binding or breach of to be in full force and effect that have not had and would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect. Except as has not had and would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect, as of the date hereof, (A) Parent and its subsidiaries have in all material respects performed all obligations required to be performed by them under each Parent Material Contract and, to the knowledge of Parent, each other party to each Parent Material Contract has in all material respects performed all obligations required to be performed by it under such Parent Material Contract, (B) neither Parent nor any of its subsidiaries have received written notice from any other party to a Parent Material Contract that such other party intends to terminate any such Parent Material Contract (except in accordance with the terms thereof) and (C) there is no default under (nor does there exist any condition that upon Parent Material Contract by Parent or any of its subsidiaries and, to the passage knowledge of Parent, no event has occurred that, with the lapse of time or the giving of notice or both both, would cause such constitute a violation or breach of or default under) any Contract to which it is a party or thereunder by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreementsubsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Albertsons Companies, LLC), Merger Agreement (Rite Aid Corp)
Contracts. (ia) Neither Section 5.11(a) of the Company nor Hunters Point Disclosure Schedule sets forth a list of all of the following Contracts (collectively, “Hunters Point Material Contracts”) that are in force as of the date hereof or were entered into not more than two (2) years prior to the date of this Agreement, and to which any of its Subsidiaries is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it Hunters Point Entities is a party or that affect any of the Hunters Point Properties:
(i) any Contract that would be considered a material contract, as defined in Item 601(b)(10) of Regulation S-K promulgated by which it the SEC, with respect to the Company (after giving effect to the transactions contemplated hereby); or
(ii) any Contract in effect as of the date hereof between or among any Hunters Point Investor or any Related Party of its properties such Investor, on the one hand, and any of the Hunters Point Entities, on the other hand, other than the Organizational Documents of the Hunters Point Venture (each such Contract, a “Hunters Point Related Party Contract”).
(b) True, correct and complete copies of all of the Hunters Point Material Contracts have been provided or assets is bound, except for violations, breaches or defaults that individually or in made available to the aggregate have not had and other parties hereto (including through the Electronic Data Room). Except such as would not reasonably be expected to have a Hunters Point Material Adverse Effect on Effect, (i) all Hunters Point Material Contracts are in full force and effect and are legal, valid and binding obligations of the Company. The Company or one of its Subsidiaries has good and marketable title Hunters Point Entities, as applicable, and, to the Company's manufacturing facility and executive knowledge of the Hunters Point Venture, the other parties thereto, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws relating to creditors’ rights and general offices located principles of equity (regardless of whether enforcement is sought in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually a proceeding at law or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
equity); (ii) Except for Contracts filed none of the Hunters Point Entities is in unredacted form as exhibits breach of, or default under, any Hunters Point Material Contract; (iii) to the Company Filed SEC Documents, Section 3.01(j)(ii) knowledge of the Company Disclosure Schedule sets forth a true Hunters Point Venture, no other party to any Hunters Point Material Contract is in breach or default thereunder; and complete list as (iv) none of the date of this Agreement, and the Company Hunters Point Entities has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) all Contracts to which the Company or received written notice from any Person asserting that any of its Subsidiaries the Hunters Point Entities is a party, or that purports to be binding upon the Company, in default under any of its Subsidiaries or any of its Affiliates, that contain a covenant restricting the ability of the Company or any of its Subsidiaries Hunters Point Material Contract (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiarieswhich default remains uncured);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreement.
Appears in 2 contracts
Sources: Contribution and Sale Agreement (Five Point Holdings, LLC), Contribution and Sale Agreement (Lennar Corp /New/)
Contracts. (i) Neither Section 4.15 of the Company Disclosure Letter sets forth a true and complete list of each Contract between the Company or any of its Subsidiaries, on the one hand, and the ten largest customers of the health management services business of the Company and its Subsidiaries and the five largest customers of the fitness management services business of the Company and its Subsidiaries, in each case on the basis of total revenue for the year ended December 31, 2009, on the other hand. Except as set forth in Section 4.15 of the Company Disclosure Letter, and except for this Agreement and except as filed with the SEC, as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or is bound by any Contract that (a) would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act, (b) is a non-competition Contract or other Contract that (i) purports to limit in violation any material respect either the type of business in which the Company or breach any of the Subsidiaries of the Company (or, after the payment by Merger Sub for Shares pursuant to the Offer, Parent or any of its Subsidiaries) or any of their respective Affiliates may engage or the manner or geographic area in which any of them may so engage in any business, (ii) would require the disposition of any material assets or line of business of the Company or any of its Subsidiaries (or, after the Acceptance Time, Parent or any of its Subsidiaries) or any of their respective Affiliates as a result of the consummation of the transactions contemplated by this Agreement, (iii) is a Contract that grants “most favored nation” status to any Person that, following the Acceptance Time, would apply to Parent or any of its Subsidiaries, including the Company or any of its Subsidiaries, and affects in any material respect the pricing of any products or services by the Company of any of its Subsidiaries or, following the Acceptance Time, Parent or any of its Subsidiaries (including the Company and its Subsidiaries) or (iv) prohibits or limits, in any material respect, the right of the Company or any of its Subsidiaries (or, after the Acceptance Time, would prohibit or limit, in any material respect, the right of Parent or any of its Subsidiaries) to make, sell or distribute any products or services or use, transfer, license, distribute or enforce any of their respective Intellectual Property rights, or (c) under which any Acquired Company has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness for borrowed money in excess of $200,000 (except for such indebtedness between the Acquired Companies or guaranties by any Acquired Company of indebtedness of any Acquired Company) (each such Contract as described in this Section 4.15 or listed in Section 4.15 of the Company Disclosure Letter, a “Material Contract”). True and complete copies of all Material Contracts of the Company and its Subsidiaries have been made available to Parent. For purposes of this Agreement, “Contract” means any note, bond, mortgage, indenture, contract, agreement, lease or other instrument or obligation (whether written or oral), together with all amendments thereto. Each Material Contract 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, and is in full force and effect, except in each case for such failures to be valid and binding or to be in full force and effect that, individually or in the aggregate, have not had, and would not reasonably be expected to have, a Material Adverse Effect. Except, individually or in the aggregate, as has not had, and would not reasonably be expected to have, a Material Adverse Effect, and except as set forth in Section 4.15 of the Company Disclosure Letter, there is no default under (nor does there exist any condition 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 upon with the passage lapse of time or the giving of notice or both would cause such constitute a violation or breach of or default under) any Contract to which it is a party or by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or thereunder by the Company or any of its Subsidiaries party thereto or, to the knowledge of any debt obligations of the Company, any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreementparty thereto.
Appears in 2 contracts
Sources: Merger Agreement (Trustco Holdings, Inc.), Merger Agreement (Health Fitness Corp /MN/)
Contracts. Neither MediaOne nor any of the MediaOne Subsidiaries is a party to or bound by (i) Neither any "material contract" (as such term is defined in Item 601(b)(10) of Regulation S-K of the Company nor SEC) or any agreement, contract or commitment that would be such a "material contract" but for the exception for contracts entered into in the ordinary course of business, (ii) any non-competition agreement or any other agreement or obligation which materially limits or will materially limit MediaOne or any of its the MediaOne Subsidiaries is from engaging in violation the business of providing cable television, telephony or breach of or data transmission services in default under (nor does there exist any condition that upon the passage of time United States or the giving business of notice providing programming content in the United States, the United Kingdom or both would cause such a violation or breach of or default underJapan, (iii) any Contract agreement, contract or commitment to which it is a party or by which it TW or any of its properties Affiliates is a party that amends the TWE Partnership Agreement or assets any related agreement or affects the rights or obligations of MediaOne or any MediaOne Subsidiary with respect to TWE or any TWE Subsidiary or (iv) any material agreement, contract or commitment to which U S WEST or any of its Affiliates is bounda party that is not in the ordinary course of business of MediaOne and the MediaOne Subsidiaries. With such exceptions as, except for violations, breaches or defaults that individually or in the aggregate aggregate, have not had had, and would not be reasonably expected to have, a MediaOne Material Adverse Effect, (x) each of the contracts, agreements and commitments of the MediaOne and the MediaOne Subsidiaries is valid and in full force and effect and (y) neither MediaOne nor any of the MediaOne Subsidiaries has violated any provision of, or committed or failed to perform any act which, with or without notice, lapse of time, or both, would constitute a default under the provisions of any such contract, agreement or commitment. To the knowledge of MediaOne, no counterparty to any such contract, agreement or commitment has violated any provision of, or committed or failed to perform any act which, with or without notice, lapse of time, or both would constitute a default or other breach under the provisions of, such contract, agreement or commitment, except for defaults or breaches which, individually or in the aggregate, have not had, or would not reasonably be expected to have have, a MediaOne Material Adverse Effect on the CompanyEffect. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) all Contracts to which the Company or Neither MediaOne nor any of its Subsidiaries MediaOne Subsidiary is a partyparty to, or that purports to be binding upon the Companyotherwise a guarantor of or liable with respect to, any of its Subsidiaries interest rate, currency or any of its Affiliatesother swap or derivative transaction, that contain a covenant restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements such transactions which are not material to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness business of the Company MediaOne Group. MediaOne has provided or any made available to AT&T a copy of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person each agreement described in item (other than the Company or any of its Subsidiariesi), including the respective aggregate principal amounts outstanding as of the date of this Agreement(ii), (iii) or (iv) above.
Appears in 2 contracts
Sources: Merger Agreement (At&t Corp), Merger Agreement (Mediaone Group Inc)
Contracts. (i) Neither Except as disclosed in Section 3.02(m)(i) of the Company nor Parent Disclosure Schedule, there is no Contract to which Parent or any of its Subsidiaries is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it subsidiaries is a party or by which it or any of its properties or assets is boundbound that is required under the Exchange Act and the rules and regulations promulgated thereunder to be filed as an exhibit to any of the Parent SEC Documents (the "Parent Material Contracts"). Neither Parent nor any of its subsidiaries is in violation of or default under (nor has Parent or any of its subsidiaries received written notice from any third party alleging that Parent or any of its subsidiaries is in violation of or in default under, nor, to the knowledge of Parent, does there exist any condition which upon the passage of time or the giving of notice would cause such a violation of or default under) any Parent Material Contract, except for violations, breaches violations or defaults that would not, individually or in the aggregate have not had and would not aggregate, reasonably be expected to have result in a Material Adverse Effect material adverse effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the CompanyParent.
(ii) Except for Contracts filed as disclosed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii3.02(m)(ii) of the Company Parent Disclosure Schedule, neither Parent nor any of its subsidiaries is a party to or is bound by any Parent Material Contract which (A) provides that the terms thereof or any or all of the benefits or burdens thereunder will be affected or altered (including, by means of acceleration) by, or are contingent upon the execution of this Agreement or the consummation of the transactions contemplated hereby, or (B) will be subject to termination or cancellation as a result of the execution of this Agreement or the consummation of the transactions contemplated hereby.
(iii) Section 3.02(m)(iii) of Parent Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) a list of all Contracts material agreements, instruments and other obligations pursuant to which the Company any indebtedness for borrowed money 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability capitalized lease obligations of Parent or any of its Subsidiaries, including the Company subsidiaries and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding thereunder as of the date of this Agreement.
(iv) Neither Parent nor any of its subsidiaries is a party to or bound by any non-competition agreement or any other agreement or obligation that purports to limit in any material respect the manner in which, or the localities in which, all or any substantial portion of the business of Parent and its subsidiaries, taken as a whole, is or would be conducted.
Appears in 2 contracts
Sources: Merger Agreement (Urs Corp /New/), Merger Agreement (Tc Group LLC)
Contracts. (ia) As of the date of this Agreement, there are no Contracts that are material contracts (as defined in Item 601(b)(10) of Regulation S-K) with respect to Otic Pharma (assuming Otic Pharma was subject to the requirements of the Exchange Act), other than those Contracts identified in Section 3.11(a) of the Otic Pharma Disclosure Schedule.
(b) Neither Otic Pharma nor any of its Subsidiaries has entered into any transaction that would be subject to proxy statement disclosure pursuant to Item 404 of Regulation S-K (assuming Otic Pharma was subject to the Company requirements of the Exchange Act), other than as disclosed in Section 3.11(b) of the Otic Pharma Disclosure Schedule.
(c) Neither Otic Pharma nor any of its Subsidiaries is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party or by to any agreement under which it a third party would be entitled to receive a license or any other right to Otic Pharma Intellectual Property as a result of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Companytransactions contemplated by this Agreement.
(iid) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii3.11(d) of the Company Otic Pharma Disclosure Schedule sets forth a true and complete list lists the following Contracts of Otic Pharma in effect as of the date of this Agreement, and :
(i) any Contract (or group of related Contracts) for the Company has delivered to Parent prior to purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than 180 days from the date of this Agreement trueAgreement, complete and correct copies (including all amendments and modifications theretoB) of:which involves an aggregate of more than $150,000 or (C) in which Otic Pharma or any of its Subsidiaries has granted manufacturing rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any products or territory or has agreed to purchase a minimum quantity of goods or services or has agreed to purchase goods or services exclusively from a particular party;
(Aii) all Contracts to any Contract under which the consequences of a default or termination would reasonably be likely to have a Otic Pharma Material Adverse Effect;
(iii) any Contract that could reasonably be expected to have the effect of prohibiting or impairing the conduct of the business of Otic Pharma or any of its Subsidiaries or Public Company or any of its Subsidiaries is a party, or that purports as currently conducted and as currently proposed to be binding upon the Company, any of its Subsidiaries or any of its Affiliates, that contain a covenant restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic areaconducted;
(Biv) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to Contract under which the Company Otic Pharma or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreementsrestricted from selling, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company licensing or otherwise distributing any of its Subsidiaries is outstanding technology or may be incurred and all guarantees of products, or by the Company providing services to, customers or potential customers or any class of its Subsidiaries customers, in any geographic area, during any period of time or any segment of the market or line of business;
(v) any dealer, distribution, joint marketing, joint venture, joint development, partnership, strategic alliance, collaboration, development agreement or outsourcing arrangement;
(vi) any Contract for the conduct of research studies, pre-clinical or clinical studies, manufacturing, distribution, supply, marketing or co-promotion of any debt obligations products in development by or which has been or which is being marketed, distributed, supported, sold or licensed out, in each case by or on behalf of any other person (other than the Company Otic Pharma or any of its Subsidiaries; and
(vii) any Contract that would entitle any third party to receive a license or any other right to intellectual property of Public Company or any of Public Company’s Affiliates following the Closing.
(e) Otic Pharma has made available to Public Company a complete and accurate copy of each Contract listed in Sections 3.10(b)(i), including the respective aggregate principal amounts outstanding as 3.10(b)(ii), 3.11(a), 3.11(b) and 3.11(d) of the date Otic Pharma Disclosure Schedule. With respect to each Contract so listed: (i) the Contract is legal, valid, binding and enforceable and in full force and effect against Otic Pharma and/or its Subsidiaries party thereto, as applicable, and, to the knowledge of Otic Pharma, against each other party thereto, as applicable, subject to the Bankruptcy and Equity Exception; (ii) the Contract will continue to be legal, valid, binding and enforceable and in full force and effect against Otic Pharma and/or its Subsidiaries party thereto, as applicable, and, to the knowledge of Otic Pharma, against each other party thereto, immediately following the Closing in accordance with the terms thereof as in effect immediately prior to the Closing (other than any such Contracts that expire or terminate before such time in accordance with their terms and not as a result of a breach or default by Otic Pharma or its Subsidiaries), in each such case subject to the Bankruptcy and Equity Exception; and (iii) none of Otic Pharma, its Subsidiaries nor, to the knowledge of Otic Pharma, any other party, is in breach or violation of, or default under, any such Contract, and no event has occurred, is pending or, to the knowledge of Otic Pharma, is threatened, which, with or without notice or lapse of time, or both, would constitute a breach or default by Otic Pharma, its Subsidiaries or, to the knowledge of Otic Pharma, any other party under such Contract, except for such breaches, violations or defaults that, individually or in the aggregate, have not had, and are not reasonably likely to have, a Otic Pharma Material Adverse Effect.
(f) For purposes of this Agreement, the term “Contract” shall mean, with respect to any person, any written, oral or other agreement, contract, subcontract, lease (whether for real or personal property), mortgage, understanding, arrangement, instrument, note, option, warranty, license, sublicense, insurance policy, benefit plan or commitment or undertaking of any nature to which such person is a party or by which such person or any of its assets are bound under applicable law.
Appears in 2 contracts
Sources: Share Purchase Agreement (Tokai Pharmaceuticals Inc), Share Purchase Agreement (Tokai Pharmaceuticals Inc)
Contracts. (ia) Neither the Company nor any of its Subsidiaries is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party or by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) 4.14 of the Company Purchaser Disclosure Schedule sets forth a true and complete list as Letter lists each of the date following types of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company Purchaser or any of its Subsidiaries is a party (including all amendments and modifications thereto); andor by which any of their respective properties or assets is bound as of the date hereof:
(Di) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") any Contract that would be required to be filed by Purchaser as a “material contract” pursuant to which Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed by Purchaser on a Current Report on Form 8-K;
(ii) any indebtedness Contract that materially limits the ability of the Company Purchaser or any of its Subsidiaries is outstanding (or, following the consummation of the transactions contemplated by this Agreement, would limit the ability of Purchaser or any of their Subsidiaries, including Surviving Corporation) to compete in any material line of business or with any Person or in any geographic area (other than as may be incurred required by Law or any Governmental Entity) or which grants any right of first refusal, right of first offer or similar right or that limits or purports to limit the ability of Purchaser or any of its Subsidiaries (or, following consummation of the transactions contemplated hereby, Surviving Corporation) to own, operate, sell, transfer, pledge or otherwise dispose of any assets or business;
(iii) any Contract for, with respect to, or that contemplates, a possible merger, consolidation, reorganization, recapitalization or other business combination, or asset sale or sale of equity securities not in the ordinary course of business consistent with past practice, with respect to it or any of its Subsidiaries or any Contract which relates to a merger, consolidation, reorganization, recapitalization or other business combination, or asset sale or sale of equity securities and all guarantees which contains representations, covenants, indemnities or other obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect;
(iv) any Contract relating to the borrowing of money by it or any its Subsidiaries or the guarantee by the Company it or any of its Subsidiaries of any debt obligations such obligation of any other person a third party (other than deposit liabilities and FHLB borrowings, Contracts pertaining to fully-secured repurchase agreements and Contracts relating to endorsements for payment, guarantees and letters of credit made in the Company ordinary course of business consistent with past practice), including any sale and leaseback transactions, capitalized leases and other similar financing transactions; and
(v) any Contract relating to a joint venture, partnership, limited liability company agreement or other similar agreement or arrangement, or relating to the formation, creation or operation, management or control of any partnership or joint venture, in each case, with any third parties, or any Contract which limits payments of dividends. Each Contract of the type described in clauses (i) through (v) is referred to herein as a “Purchaser Material Contract.”
(b) (i) Each Purchaser Material Contract is valid and binding on Purchaser and any of its Subsidiaries to the extent such Subsidiary is a party thereto, as applicable, and to the knowledge of Purchaser, each other party thereto, and is in full force and effect and enforceable in accordance with its terms, except to the extent that validity and enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or similar Laws affecting the enforcement of creditors’ rights generally or by general principles of equity or by principles of public policy and except where the failure to be valid, binding, enforceable and in full force and effect, individually or in the aggregate, has not had a Purchaser Material Adverse Effect; and (ii) there is no default under any Purchaser Material Contract by Purchaser or any of its Subsidiaries)Subsidiaries or, to the knowledge of Purchaser, any other party thereto, and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a default on the part of Purchaser or any of its Subsidiaries or, to the knowledge of Purchaser, any other party thereto under any such Purchaser Material Contract, nor has Purchaser or any of its Subsidiaries received any written notice of any such default, event or condition, or of any termination or non-renewal of any Purchaser Material Contract, except where any such default, event or condition, or any such termination or non-renewal, individually or in the aggregate, has not had a Purchaser Material Adverse Effect. Purchaser has made available to Company a true and complete copy of any Purchaser Material Contracts, including any amendments thereto, to the respective aggregate principal amounts outstanding as of the date of this Agreementextent requested by Company.
Appears in 2 contracts
Sources: Merger Agreement (Hancock Holding Co), Merger Agreement (Whitney Holding Corp)
Contracts. (i) Neither the Company nor any of its Subsidiaries is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party or by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts as filed in unredacted form as exhibits to the Company Filed SEC DocumentsFilings filed prior to the date of this Agreement, or as disclosed in Section 3.01(j)(ii) 3.9 of the Company Disclosure Schedule sets forth a true and complete list Letter, as of the date of this AgreementAgreement neither the Company nor any Company Subsidiary is a party to or bound by any Contract (each a “Company Material Contract”) that (i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) is with any Affiliate of the Company, other than any Contract (A) which is or has been fully performed and under which the Company has delivered to Parent prior to no continuing right, liability or obligation, or (B) that is otherwise disclosed on the date Company Disclosure Letter and marked with a footnote indicating that it is a Contract with an Affiliate of this Agreement truethe Company, complete and correct copies or (including all amendments and modifications theretoiii) of:
(A) all Contracts to which limits or otherwise restricts the Company or any of its Subsidiaries is a party, Company Subsidiary or that purports to be binding upon would, after the CompanyEffective Time, any of its Subsidiaries limit or any of its Affiliates, that contain a covenant restricting the ability of the Company restrict Parent or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company Surviving Corporation and its Subsidiaries) to compete or any successor thereto, from engaging or competing in any line of business or with any person or in any geographic area;
(B) all Contracts . To the Company’s Knowledge, none of the Company contracts or agreements referred to in the foregoing clause (iii) would preclude the Company, the Surviving Corporation or Parent after Closing from engaging in any of its Subsidiaries with any Affiliate current activities, or presently planned material activities of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company is aware. All Company Material Contracts are valid and in full force and effect except to the extent they have previously expired in accordance with their terms, and neither the Company nor any Company Subsidiary has violated any provision of, or committed or failed to perform any act which, with or without notice, lapse or time, or both, could reasonably be expected to constitute a material default under the provisions of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness such Company Material Contract. To the Knowledge of the Company, no counterparty to any such Company Material Contract has violated any provision of, or committed or failed to perform any act which, with our without notice, lapse of its Subsidiaries is outstanding time, or may both, could reasonably be incurred and expected to constitute a material default or other breach under the provisions of any such Company Material Contract. Copies of all guarantees of or by the Contracts set forth in the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this AgreementDisclosure Letter have heretofore been made available to Parent and such copies are accurate and complete.
Appears in 2 contracts
Sources: Merger Agreement (Integrated Circuit Systems Inc), Merger Agreement (Integrated Device Technology Inc)
Contracts. (i) Neither Except as set forth in Section 3.14 of the --------- Company nor any of its Subsidiaries Disclosure Schedule, each Company Agreement is valid, binding and enforceable and is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party or by which it or any of its properties or assets is boundfull force and effect, except for violationswhere any failures, breaches or defaults that individually or in the aggregate have not had aggregate, to be valid, binding and enforceable and in full force and effect would not be reasonably be expected likely to have a Company Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good Effect, and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelierthere are no defaults thereunder, Ohioexcept those defaults that would not, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not aggregate, be reasonably be expected likely to have a Company Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Effect. Section 3.01(j)(ii) 3.14 of the Company Disclosure Schedule sets forth a true and complete list as of the date hereof of this (each, a "Material Company Agreement, and "): --------------------------
(a) any agreement required to be filed as an Exhibit to an Annual Report on Form 10-K of the Company has delivered pursuant to Parent prior to Item 601(b)(10) of Regulation S-K of the date of this Agreement trueSecurities Act), complete and correct copies (including all amendments and modifications thereto) of:
(A) all Contracts to which entered into by the Company or any of its Subsidiaries is a partyCompany Subsidiary since December 31, or that purports 2000 and all amendments to be binding upon any such Company Agreements included as an exhibit to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, any of its Subsidiaries 2000;
(b) all non-competition or any of its Affiliates, that contain a covenant restricting similar agreements imposing restrictions on the ability of the Company or any of its Subsidiaries Company Subsidiary to conduct any business (or which, following the consummation of the Merger, could restrict the ability of Parent or manner in which any of its Subsidiaries, including the Company and its Subsidiariesthem may conduct business) to compete in any business jurisdiction or with any person or in any geographic areaterritory;
(c) any Company Agreement in effect as of the date hereof (i) for the supply of published fare airline tickets, including any agreements relating to commissions (normal, override or other) payable in respect of the sale of such airline tickets, (ii) for the supply of net fare or opaque fare airline tickets (as to which there are no agreements to pay to the Company any commissions) which contain any restrictions on the manner in which the Company sells such tickets (other than restrictions which (x)(A) require the sale of such tickets together with other products, (B) all Contracts require such tickets to be sold opaquely or (C) do not permit the sale of such tickets on the internet, and (y) have not been agreed to for a period of more than two months) and (iii) relating to global distribution services;
(d) any Company Agreement that requires the Company to conduct business exclusively with one or more Persons in any particular geographic area or with respect to any particular product or service and that cannot be canceled by the Company within 60 days following notice thereof without the payment of any penalty;
(e) indentures, credit agreements, security agreements, mortgages, guarantees and promissory notes, and other Company Agreements relating to the borrowing of money or the lending of money by the Company or any Company Subsidiary involving amounts in excess of $100,000 individually or, other than in respect of the mortgage set forth in Section 3.14 of the Company Disclosure Schedule, $250,000 in the aggregate;
(f) partnership, joint venture and similar agreements;
(g) bonds or agreements of guarantee or indemnification in which the Company or any Company Subsidiary acts as surety, guarantor or indemnitor with respect to any obligation (fixed or contingent) in excess of $50,000 individually or $250,000 in the aggregate and that cannot be terminated by the Company any Company Subsidiary within 60 days following notice thereof without the payment of a material penalty, other than any of the foregoing relating to obligations of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries)Subsidiary;
(Ch) all joint venture, partnership or other similar agreements to which the Company or any personal property lease with an annual payment thereunder of its Subsidiaries is a party (including all amendments and modifications thereto)more than $50,000; and
(Di) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person Agreement (other than those listed in paragraphs (a) through (h) immediately above) which provides for payments to or from the Company in an amount of $100,000 annually or any $300,000 in the aggregate over the maximum life of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this such Company Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Cheap Tickets Inc), Merger Agreement (Cendant Corp)
Contracts. (ia) Neither For purposes of this Agreement, a “Parent Material Contract” shall include each Contract of the Company nor following types to which Parent or any of its Subsidiaries is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party or by which it any of their respective properties or assets is bound as of the date hereof:
(i) any Contract identified on the lists of exhibits to the Parent SEC Documents;
(ii) any Contract that would be required to be filed by Parent as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act;
(iii) any Contract that (A) materially limits the ability of Parent or any of its properties Subsidiaries (or, following the consummation of the Transactions, would reasonably be expected to materially limit the Surviving Company or the Opco Surviving Company) to compete in any line of business or with any Person or in any geographic area (including any Contract containing any area of mutual interest (but excluding areas of mutual interest under joint operating agreements), joint bidding area, joint acquisition area or non-compete or similar type of restriction), (B) materially restricts the right of Parent or any of its Subsidiaries (or, following the consummation of the Transactions, would reasonably be expected to materially limit the ability of the Surviving Company or the Opco Surviving Company) to sell to or purchase from any Person any products or services, or use, transfer or distribute, or enforce any of their rights with respect to, any of their material assets, or (C) grants the other party or any third Person “most favored nation” status with respect to any material obligation (other than pursuant to customary royalty pricing provisions in Oil and Gas Leases or customary preferential rights in joint operating agreements, unit agreements or participation agreements affecting the Oil and Gas Properties of Parent or any of its Subsidiaries);
(iv) any material joint venture, partnership or limited liability agreement, other than any customary joint operating agreements, unit agreements or participation agreements affecting the Oil and Gas Properties of Parent or any of its Subsidiaries;
(v) any Contract that constitutes a commitment of Parent or any of its Subsidiaries relating to Indebtedness and having an outstanding principal amount in excess of $100,000,000, other than agreements solely between or among Parent and its Subsidiaries;
(vi) any Contract involving any pending acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests for aggregate consideration (in one or a series of transactions) under such Contract of $100,000,000 or more (other than acquisitions or dispositions of inventory or the purchase or sale of Hydrocarbons, in each case, in the ordinary course of business consistent with past practice);
(vii) each joint development agreement, exploration agreement, participation, farmout, farmin or program agreement or similar contract requiring Parent or any of its Subsidiaries to make expenditures that would reasonably be expected to exceed $100,000,000 in the aggregate during the 12-month period following the date of this Agreement, other than customary joint operating agreements and continuous development obligations under Oil and Gas Leases;
(viii) each Contract for any Derivative Transaction with a notional value in excess of $35,000,000;
(ix) each Contract to which Parent or any of its Subsidiaries is bounda party for the purchase, except sale, swap or exchange of minerals or mineral rights having a value in excess of $100,000,000, in each case, for violationswhich such purchase, breaches sale, swap or defaults exchange of minerals or mineral rights remain pending (and excluding, for the avoidance of doubt, the purchase and sale of Hydrocarbons in the ordinary course of business consistent with past practices); and
(x) each Contract for lease of personal property or real property (other than Oil and Gas Properties) involving payments in excess of $100,000,000 in any calendar year or aggregate payments in excess of $200,000,000 that is not terminable without penalty or other liability to Parent (other than any ongoing obligation pursuant to such contract that is not caused by any such termination) within 90 days, other than Contracts related to drilling rigs.
(b) Except for matters which, individually or in the aggregate aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect (provided, that clause (D) of the definition of “Material Adverse Effect” shall be disregarded for purposes of this Section 4.16(b)), (i) each Parent Material Contract is valid and binding on the Company. The Company or one Parent and any of its Subsidiaries has good and marketable title to the Company's manufacturing facility extent such Subsidiary is a party thereto, as applicable, and executive to the knowledge of Parent, each other party thereto, and general offices located is in Montpelierfull force and effect and enforceable in accordance with its terms, Ohiosubject, free as to enforceability, to Creditors’ Rights, and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to there is no pending or unresolved default under any Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) all Contracts to which the Company Material Contract by Parent or any of its Subsidiaries is a partyor, or that purports to be binding upon the Companyknowledge of Parent, any other party thereto, and no event or condition has occurred that remains pending or unresolved that constitutes, or, after notice or lapse of its Subsidiaries time or any of its Affiliatesboth, that contain would reasonably be expected to constitute, a covenant restricting default on the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability part of Parent or any of its SubsidiariesSubsidiaries or, including to the Company and its Subsidiaries) to compete in knowledge of Parent, any business or with other party thereto under any person or in any geographic area;
(B) all Contracts of the Company such Parent Material Contract, nor has Parent or any of its Subsidiaries with received any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries notice of any debt obligations of any other person (other than the Company such default, event or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreementcondition.
Appears in 2 contracts
Sources: Merger Agreement (Pioneer Natural Resources Co), Merger Agreement (Parsley Energy, Inc.)
Contracts. Except for (i) Neither agreements relating to mortgage --------- financing to be repaid on the Company nor any of its Subsidiaries is Closing Date, (ii) the leases referred to in violation Section 2.14 below, or breach of (iii) the ground and air space leases referred to in Section 2.15 below, Schedule 2.13 attached hereto lists all contracts or in default under (nor does there exist any condition that upon the passage of time other ------------- understandings, written or the giving of notice or both would cause such a violation or breach of or default under) any Contract oral, to which it any Grantor is a party or by which it any Grantor is bound that relate to the Properties or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect will otherwise become binding on the CompanyOperating Partnership, the REIT or the Services Company following consummation of the Transactions (collectively, the "Contracts" and each, a "Contract"). The Company or one For purposes of its Subsidiaries has good and marketable title this Section 2.13, "Contracts" means (a) contracts which are required to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to a registration statement or report under Item 601 of Regulation S-K promulgated under the Company Filed SEC Documents, Section 3.01(j)(iiSecurities Act and (b) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior contracts or other understandings which are known to the date Indemnitors and involve performance of this Agreement services or delivery of goods or materials of an amount or value in excess $50,000 or were entered into by a Grantor other than in the ordinary course of business. A true, complete and correct copies copy of each Contract (including all amendments amendments, modifications and modifications supplements thereto) of:
(A) all Contracts has been delivered to which the Company REIT 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 restricting Operating Partnership. To the ability knowledge of the Company Indemnitors, each of the Contracts is valid and binding and is in full force and effect. To the knowledge of the Indemnitors, no Grantor and no other party to any Contract has breached or defaulted under the terms of such Contract or given or received any notice of its Subsidiaries default of any provision of such Contract, except for such breaches or defaults that would not, singly or in the aggregate, have a material adverse effect on the condition (financial or whichotherwise), earnings, assets, business affairs or business prospects of any Real Property, the ▇▇▇▇▇▇ Group's Business or, following the consummation of the MergerTransactions, could restrict the ability of Parent REIT or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business Operating Partnership or with any person or in any geographic area;
(B) all Contracts on the Transactions. To the knowledge of the Company or any of its Subsidiaries with any Affiliate Indemnitors, each of the Company (other than any of Contracts will continue to be binding in accordance with its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which terms following the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness consummation of the Company or any of its Subsidiaries Transactions and is outstanding or may be incurred and all guarantees of or by freely assignable to the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this AgreementOperating Partnership.
Appears in 2 contracts
Sources: Supplemental Representations, Warranties and Indemnity Agreement (Kilroy Realty Corp), Supplemental Representations, Warranties and Indemnity Agreement (Kilroy Realty Corp)
Contracts. (ia) Neither the Company nor any of its Subsidiaries is a party to or bound by any contract, arrangement, commitment or understanding (whether written or oral) that: (i) is an employment agreement that upon Consummation of the Offer or the effectiveness of the Merger, will (either alone or upon the occurrence of any additional acts or events) result in violation any payment or breach benefits (whether of severance pay or otherwise) becoming due, or the acceleration or vesting of any rights to any payment or benefits, from Parent, Purchaser, the Company or the Surviving Corporation or any of their respective Subsidiaries to any officer, director, consultant or employee thereof, (ii) is a material contract (as defined in Item 601(b)(10) of Regulation S-K of the SEC) to be performed (in whole or in default under part) after the date of this Agreement that has not been filed or incorporated by reference in the Company SEC Reports, (nor does there exist iii) which contains any condition material prohibition on the conduct of any business or line of business, or any material limitation on the scope of business that upon may be conducted, by the passage Company of time or any of its Subsidiaries, including geographic limitations on the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party or by which it Company's or any of its properties Subsidiaries' activities or assets is bound(iv) (including any stock option plan, except for violationsstock appreciation rights plan, breaches restricted stock plan or defaults that individually stock purchase plan) any of the benefits of which will be increased, or in the aggregate have not had and would not reasonably vesting of the benefits of which will be expected to have a Material Adverse Effect accelerated, by the occurrence of any of the transactions contemplated by this Agreement, or the value of any of the benefits of which will be calculated on the Companybasis of any of the transactions contemplated by this Agreement. The Company Each contract, arrangement, commitment or one understanding of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located type described in Montpelierthis Section 6.20(a), Ohio, free and clear of all Liens except for Liens, defects whether or not set forth in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii6.20(a) of the Company Disclosure Schedule sets forth Schedule, is referred to herein as a true and complete list as of the date of this Agreement, and the "MATERIAL CONTRACT." The Company has delivered previously made available to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:of each Material Contract.
(Ab) all Contracts to which Each Material Contract is valid and binding and in full force and effect, (ii) no default exists on 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 restricting the ability part of the Company or any of its Subsidiaries (under any such Material Contract and no event or whichcondition exists which constitutes or, following after notice or lapse of time or both, would constitute, a default on the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts part of the Company or any of its Subsidiaries with under any Affiliate such Material Contract and (iii) to the Knowledge of the Company (no other than party to such Material Contract is in default in any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreementrespect thereunder.
Appears in 2 contracts
Sources: Merger Agreement (Cemex Sa De Cv), Merger Agreement (Cemex Sa De Cv)
Contracts. (i) Neither the Company nor any of its Subsidiaries is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party or by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(iia) Except for Contracts this Agreement and except for any Contract filed in unredacted form as exhibits an exhibit to the Company Filed SEC DocumentsReports, Section 3.01(j)(ii) 4.18 of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreementlists, and the Company has delivered made available to Parent prior to true, correct and complete copies (except for redactions of competitive information) of, each and every Contract (in each case, determined as of the date of this Agreement true, complete and correct copies (including all amendments and modifications theretohereof) of:
(A) all Contracts to which the Company or any of its Subsidiaries is a party, party or that purports to be binding upon by which the Company, Company or any of its Subsidiaries or any of their respective properties or assets is bound and which is currently in effect or under which the Company or any of its AffiliatesSubsidiaries has any continuing rights or obligations:
(i) that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed by the Company on a Current Report on Form 8-K;
(ii) that is a license, sublicense or other Contract pursuant to which the Company or any of its Subsidiaries is authorized to use any third party Intellectual Property that contain is material to the business of the Company, excluding generally commercially available, off-the-shelf software programs (the “Licensed-In Intellectual Property” and such license, sublicense or other Contract, a covenant restricting “Licensed-In Agreement”);
(iii) that is a license, sublicense or other Contract pursuant to which any third party (A) is authorized to use Owned Intellectual Property that is material to the business of the Company or (B) has obtained and continues to have exclusive rights in Owned Intellectual Property that is material to the business of the Company and its Subsidiaries, other than licenses, sublicenses and other Contracts relating to Owned Intellectual Property granted in the ordinary course of business consistent with past practice;
(iv) that contains covenants that materially restrict the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could would materially restrict the ability of Parent the Surviving Corporation or any of its Subsidiaries, including the Company and its SubsidiariesAffiliates) to compete in any business or with any person Person or in any business, geographic areaarea or distribution or sales channel, or to sell, supply or distribute any service or product, except for any such Contract that may be canceled without material penalty by the Company or its Subsidiaries upon notice of sixty (60) days or less;
(Bv) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, material partnership or other similar agreements joint venture or pursuant to which the Company or any of its Subsidiaries is has an obligation (contingent or otherwise) to make a party (including all amendments and modifications thereto); andmaterial investment in or extension of credit to any Person;
(Dvi) all loan agreementsagreements for or related to (A) indebtedness for borrowed money (other than intercompany indebtedness) having an outstanding principal amount in excess of $10 million or (B) any exchange traded, credit agreementsover the counter or other swap, notescap, debenturesfloor, bondscollar, mortgagesfutures contract, indentures and forward contract, option or any other Contracts derivative financial instrument or contract not entered into in the ordinary course of business; or
(collectively, "debt obligations"vii) with respect to any acquisition or disposition of any Person or business or material portion thereof pursuant to which any indebtedness of the Company or any of its Subsidiaries has continuing indemnification, “earn-out” or other contingent payment obligations, in each case that would reasonably be expected to result in payments in excess of $10 million. Each such Contract described in clauses (i) through (vii) is outstanding referred to herein as a “Material Contract.”
(b) Except as would not have or may reasonably be incurred expected to have, individually or in the aggregate, a Material Adverse Effect, each Material Contract is valid and binding on the Company or one of its Subsidiaries and, to the knowledge of the Company, each other party thereto and is in full force and effect, and the Company and its Subsidiaries have performed and complied with all guarantees material obligations required to be performed or complied with by it under each Material Contract. Except in any case of default as would not have or reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (x) there is no default under any Material Contract by the Company or any of its Subsidiaries or, to the knowledge of any debt obligations of the Company, by any other person party, and (other than y) 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), including or to the respective aggregate principal amounts outstanding as knowledge of the date of this AgreementCompany, by any other party.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (LS Cable Ltd.), Merger Agreement (Superior Essex Inc)
Contracts. (i) Neither the Company nor any of its Subsidiaries is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party or by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Section 3.12.1 Except for Contracts contracts filed in unredacted form as exhibits to the Company Filed SEC DocumentsFilings, Section 3.01(j)(ii) 3.12 of the Company Disclosure Schedule sets forth a true correct and complete list as of the date of this Agreement, and the Company has delivered made available to Parent prior to the date of this Agreement true, correct and complete and correct copies (including all amendments material amendments, modifications, extensions or renewals, with respect thereto, but excluding all names, terms and modifications theretoconditions that have been redacted in compliance with applicable Laws governing the sharing of information) of:of (collectively, the “Company Contracts”):
(ASection 3.12.1.1 any agreement and any amendment thereto required to be filed as an Exhibit to any report of the Company filed pursuant to the Exchange Act of the type described in Item 601(b)(10) of Regulation S-K of the Securities Act;
Section 3.12.1.2 all Contracts contracts to which the Company or any of its Subsidiaries Company Subsidiary is a party, or that purports to be binding upon the Company, any of its Subsidiaries or any of its Affiliates, party that contain a covenant restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) Subsidiaries to compete in any business or with any person or in any geographic area;
(B) Section 3.12.1.3 all Contracts contracts of the Company or any of its the Company Subsidiaries with any Affiliate affiliate of the Company (other than any of its the Company Subsidiaries);
Section 3.12.1.4 any contract to which the Company or any of the Company Subsidiaries is a party which primarily relates to (CA) the granting to the Company or any Company Subsidiary of license rights in or to any material Company Intellectual Property owned by a third party, or (B) the granting by the Company or any Company Subsidiary of license rights to a third party in or to any material Company Intellectual Property, in each of case (A) and (B) above, excluding “click-wrap” or “shrink-wrap” agreements, agreements contained in or pertaining to “off-the-shelf” Software, or the terms of use or service for any Web site;
Section 3.12.1.5 all joint venture, partnership or other similar agreements involving co-investment with a third party to which the Company or any of its the Company Subsidiaries is a party party;
Section 3.12.1.6 any contract with a Governmental Entity (including other than ordinary course contracts with Governmental Entities as a customer) which imposes any material obligation or restriction on the Company or the Company Subsidiaries;
Section 3.12.1.7 all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") contracts pursuant to which any indebtedness of the Company or any of its the Company Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its the Company Subsidiaries of any debt obligations indebtedness of any other person (other than the Company or any of its the Company Subsidiaries), including ) (except for such indebtedness or guarantees the respective aggregate principal amounts outstanding as amount of which does not exceed $500,000 on an annual basis and excluding trade payables arising in the ordinary course of business);
Section 3.12.1.8 contracts with hospitals and medical groups that, in the aggregate, represent an amount of claims repriced by the Company and the Company Subsidiaries of at least 50% of the total amount of projected 2004 claims repriced by the Company and the Company Subsidiaries to hospitals and medical groups;
Section 3.12.1.9 any customer contract (other than contracts with hospitals or other providers) that involves annual payments by the customer to the Company and the Company Subsidiaries of greater than $500,000;
Section 3.12.1.10 any contract with a vendor or supplier (other than contracts covered by Sections 3.12.1.4 or 3.12.1.8) that involves annual payments of greater than $500,000 by the Company and the Company Subsidiaries; and
Section 3.12.1.11 any contract with respect to any risk sharing or risk transfer arrangement or that provides for a retroactive premium or similar adjustment or withholding arrangement or any contract, agreement or policy for reinsurance.
Section 3.12.2 Except as set forth in the Company Disclosure Schedule, each Company Contract is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, and in full force and effect, and the Company and each Company Subsidiary has in all material respects performed all obligations required to be performed by it to the date hereof under each Company Contract and, to the Company’s knowledge, each other party to each Company Contract has in all material respects performed all obligations required to be performed by it to the date hereof under such Company Contract, except, in each case, as has not, individually or in the aggregate, resulted in a Company Material Adverse Effect.
(i) None of the Company or any of the Company Subsidiaries (x) has received written notice that it is, or has knowledge that any other party to any Company Contract is, in violation or breach of or default (with or without notice or lapse of time or both) under or (y) since January 1, 2004 through the date hereof, has expressly waived any rights or benefits under any Company Contract, and (ii) to the knowledge of the Company, there has occurred no event giving to others any right of termination, amendment or cancellation of (with or without notice or lapse of time or both) any such Company Contract, except in each case for violations, breaches, defaults or waivers covered by clauses (i) or (ii) above that, individually or in the aggregate, have not had or would not reasonably be expected to have a Company Material Adverse Effect. Since January 1, 2004 through the date hereof, except as set forth on the Company Disclosure Schedule, no counterparty to any Company Contract scheduled in response to Section 3.12.1.9 (each, a “Customer”) has given written notice of any intention to cancel or otherwise terminate, prior to the end of the applicable contract term, such Company Contract, and, to the Company’s knowledge, no Customer intends to terminate such Company Contract or otherwise materially reduce its usage or purchase of the products or services provided by the Company or any Company Subsidiary.
Section 3.12.4 Except as set forth in the Company Disclosure Schedule or as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the execution and delivery of this AgreementAgreement by the Company does not, and the performance of this Agreement by the Company will not, require any consent or approval under, result in any breach of or any loss of any benefit under, or constitute a change of control or default (or an event which with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation of, any Company Contract.
Appears in 2 contracts
Sources: Merger Agreement (First Health Group Corp), Merger Agreement (Coventry Health Care Inc)
Contracts. (ia) Neither As of the date of this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound by any Contract (whether written or oral): (i) which is a “material contract” (as such term is defined in violation or breach Item 601(b)(10) of Regulation S-K of the SEC) to be performed in full or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party or by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to part after the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) all Contracts to which that has not been filed or incorporated by reference in the Company SEC Documents; (ii) which constitutes a contract or commitment relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset) in excess of $100,000; or (iii) which contains any provision that would be reasonably expected to materially restrict or alter the conduct of business of any Affiliate of the Company (or any Affiliate of its Subsidiaries is a partyany such Affiliate of the Company), or that purports to be binding upon other than the Company, any of its Subsidiaries or any director, officer or employee of any of the Company or any of its AffiliatesSubsidiaries. Each contract, arrangement, commitment or understanding of the type described in clauses (i) and (ii) of this Section 3.12, whether or not set forth in the Company Disclosure Letter or in the Company SEC Documents, is referred to herein as a “Disclosed Contract” (for purposes of clarification, each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) to be performed after the date of this Agreement, whether or not filed with the SEC, is a Company Contract).
(i) Each Company Contract that contain is not a covenant restricting Disclosed Contract is valid and binding on the ability Company and any of its Subsidiaries that is a party thereto, as applicable, and in full force and effect, except where the failure to be valid, binding and in full force and effect would not reasonably be expected to have a Company Material Adverse Effect, (ii) the Company and each of its Subsidiaries has performed all obligations required to be performed by it to date under each Company Contract, except where such noncompliance would not reasonably be expected to have a Company Material Adverse Effect, and (iii) neither the Company nor any of its Subsidiaries knows of, or has received notice of, the existence of any event or condition which constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries (or whichunder any such Company Contract, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including except where such default would not reasonably be expected to have a Company Material Adverse Effect. Each Disclosed Contract is valid and binding on the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (that is a party thereto, as applicable, and in full force and effect, other than any of such Disclosed Contracts that expire or are terminated after the date hereof in accordance with their terms or amended by agreement with the counterparty thereto; provided that if any such Disclosed Contract is so amended in accordance with its Subsidiaries);
terms after the date hereof (C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries provided such amendment is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or not prohibited by the Company terms of this Agreement), then to the extent the representation and warranty contained in this sentence is made or any of its Subsidiaries deemed made as of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of date that is after the date of such amendment, the reference to “Disclosed Contract” in the first clause of this Agreementsentence shall be deemed to be a reference to such contract as so amended.
Appears in 2 contracts
Sources: Merger Agreement (Theragenics Corp), Merger Agreement (Michas Alexis P)
Contracts. (ia) Neither Except for this Agreement, or as filed with the Company SEC prior to the date of this Agreement, neither Parent nor any of its Subsidiaries is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party to or by which it or any of its properties or assets is boundbound by, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, any Contract (whether written or oral) (i) which is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) to Parent; or (ii) which constitutes a Contract or commitment relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset) in excess of $25,000,000 (all contracts of the type described in this Section 4.13(a) and the Company has delivered in Section 4.13(b) being referred to herein as “Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:Material Contracts”).
(Ab) all Section 4.13(b) of the Parent Disclosure Schedule contains a true and complete listing of the following 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party in effect on the date of this Agreement: (including all amendments i) each Contract containing a non-compete provision that, following the Effective Time, would by its terms materially restrict the ability of the Partnership or any of its Subsidiaries to compete in any line of business or with any Person or in any geographic area during any period of time after the Closing, (ii) each Contract involving the pending acquisition or sale of (or option to purchase or sell) any assets or properties outside the ordinary course of business that involves the payment or receipt of an aggregate amount in excess of $25,000,000 and modifications thereto); and
(Diii) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant each collective bargaining agreement to which any indebtedness of the Company Parent or any of its Subsidiaries is outstanding a party or may is subject.
(c) Except as would not have, either individually or in the aggregate, a Parent Material Adverse Effect, (i) each Parent Material Contract is valid and binding on Parent and any of its Subsidiaries, as applicable, and is in full force and effect; (ii) Parent and each of its Subsidiaries has in all material respects performed all obligations required to be incurred performed by it to date under each Parent Material Contract; and all guarantees (iii) neither Parent nor any of its Subsidiaries has received written notice of, or by to the Company Knowledge of Parent, knows of, the existence of any event or condition which constitutes, or, after notice or lapse of time or both, will constitute, a material default on the part of Parent or any of its Subsidiaries of under any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreementsuch Parent Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Markwest Energy Partners L P), Merger Agreement
Contracts. (i) Neither Except as disclosed in the Filed Company SEC Documents and except with respect to licenses and other agreements relating to intellectual property, which are the subject of Section 4.01(p), as of the date hereof, 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 and the rules and regulations promulgated thereunder. None of the Company, any of its Subsidiaries or, to the Knowledge of the Company, any other party thereto is in violation or breach of or in default under (nor does there exist any condition that which upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract Contract, to which it is a party or by which it or any of its properties or other assets is bound, except for violations, breaches violations or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on Effect. Neither the Company. The Company or one nor any of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) entered into any Contract with any Affiliate of the Company Disclosure Schedule sets forth a true and complete list that is in effect as of the date of this Agreement, and hereof other than Contracts that are disclosed in the Filed Company SEC Documents. Neither the Company has delivered nor any of its Subsidiaries is a party to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
or otherwise bound by any agreement or covenant (A) all Contracts restricting in any material respect the Company’s or its Subsidiaries’ ability to which compete, (B) restricting in any respect the Company’s Affiliates’ ability to compete (other than the Company’s Subsidiaries), (C) restricting in any material respect the research, development, distribution, sale, supply, license, marketing or manufacturing of products or services of the Company or any of its Subsidiaries is a partySubsidiaries, (D) restricting in any respect the research, development, distribution, sale, supply, license, marketing or that purports to be binding upon manufacturing of products or services of any of the Company’s Affiliates (other than the Company’s Subsidiaries) or (E) containing a right of first refusal, any right of first negotiation or right of first offer in favor of a party other than the Company or its Subsidiaries Subsidiaries.
(ii) Each Participant who has proprietary knowledge of or any information relating to the material elements of its Affiliatesthe design, that contain a covenant restricting the ability manufacturing processes or the formulation of the products of the Company or any of its Subsidiaries (has executed and delivered to the Company or which, following the consummation applicable Subsidiary of the MergerCompany an agreement or agreements, could restrict substantially in the ability form(s) set forth in Section 4.01(i)(ii) of Parent or any of its Subsidiaries, including the Company Disclosure Letter restricting such person’s right to use and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts disclose confidential information of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Mentor Corp /Mn/), Merger Agreement (Johnson & Johnson)
Contracts. (i) Neither the Company nor any of its Subsidiaries is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party or by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts as filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of Filings prior to the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) 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 restricting the ability as disclosed in Section 3.13 of the Company or any Disclosure Memorandum, none of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party to or bound by any Contract that (including a) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (b) involves aggregate expenditures after the date hereof in excess of $500,000, (c) involves annual expenditures in excess of $500,000 and is not cancelable within one year, (d) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company or any of its Subsidiaries, or which restricts the conduct of any line of business by the Company or any of its Subsidiaries or any geographic area in which the Company or any of its Subsidiaries may conduct business, in each case in any material respect or (e) which would prohibit or materially delay the consummation of the Merger or any of the transactions contemplated by this Agreement. Each Contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Memorandum, is referred to herein as a “Company Material Contract.” Except as set forth in Section 3.13 of the Company Disclosure Memorandum and except as would not, individually or in the aggregate, have a Material Adverse Effect, each Company Material Contract is valid and binding on the Company and each of its Subsidiaries party thereto and, to the Company’s knowledge, each other party thereto, and in full force and effect, and the Company and each of its Subsidiaries has in all amendments and modifications thereto); respects performed all obligations required to be performed by it to the date hereof under each Company Material Contract and
(D) , to the Company’s knowledge, each other party to each Company Material Contract has in all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant respects performed all obligations required to which any indebtedness be performed by it under such Company Material Contract. None of the Company or any of its Subsidiaries is outstanding has received any written notice of any violation or may be incurred and all guarantees default under (or any condition which with the passage of time or the giving of notice would cause such a violation of or by the default under) any Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this AgreementMaterial Contract.
Appears in 2 contracts
Sources: Merger Agreement (Zhone Technologies Inc), Merger Agreement (Paradyne Networks Inc)
Contracts. (a) As of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by (i) any “material contract” (as such item is defined in Item 601(b)(10) of Regulation S-K), (ii) any joint venture agreement and (iii) other than the Pharmacy Agreement with Medco Health Solutions, Inc., a true and complete copy of which has been provided to Buyer prior to the date hereof, any agreement which does or may establish the terms under which the Company or any of its Subsidiaries will receive payment for providing products or services to the sponsors or beneficiaries of any Part D plan (as such term is defined at 42 C.F.R. Section 423.4), including any Part D plan which has not, as of the date hereof, been approved by the Centers for Medicare and Medicaid Services as a Part D plan, but for which such approval is being sought. Prior to the date hereof, the Company has provided to Buyer access to substantially all of the customer or provider agreements to which the Company or any of its Subsidiary is a party to or bound by. As of the date hereof, to the Company’s actual knowledge (without inquiry), neither the Company nor any of its Subsidiaries is a party to, or bound by, any written or oral non-competition agreement or any other agreement or arrangement that may limit or otherwise materially restrict the Company or any of its Subsidiaries or their respective Affiliates or any successor thereto, or that would, after the Effective Time, limit or restrict Buyer or any of its Affiliates (including the Surviving Corporation) or any successor thereto, from engaging or competing in any line of business currently engaged in, or proposed to be engaged in, by the Company or any of its Subsidiaries in any geographic area or with respect to any customer or potential customer. For purposes of this Agreement, the types of agreements or arrangements described in this Section 5.14(a) are collectively referred to as “Company Agreements.”
(b) Each of the Company Agreements is a valid and binding obligation of the Company or one of its Subsidiaries and, to the knowledge of the Company, the valid and binding obligation of each other party thereto. Neither the Company nor any of its Subsidiaries is or is alleged to be nor, to the knowledge of the Company, is any other party thereto, in breach or violation or breach of or in default under (nor does there exist in respect of, any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party or by which it or any of its properties or assets is boundCompany Agreements, except for violationsany breach, breaches violation or defaults that individually or in the aggregate have not had and default which would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelierhave, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have aggregate, a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Omnicare Inc), Merger Agreement (Omnicare Inc)
Contracts. (ia) Neither the Company nor any of its Subsidiaries is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party or by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) 2.16 of the Company Disclosure Schedule sets forth a true and complete list as Letter lists each Contract of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements types to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); andor by which any of their respective properties or assets is bound as of the date of this Agreement:
(Di) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") any Contract that would be required to be filed by the Company as a “material contract” pursuant to which Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed by the Company on a Current Report on Form 6-K;
(ii) any indebtedness Contract (A) that limits the ability of the Company or any of its Subsidiaries is (or, following the consummation of the Offer and the other transactions contemplated by this Agreement, would limit the ability of Parent or any of its Subsidiaries) to compete in any line of business or with any Person or in any geographic area, (B) that restricts the right of the Company or any of its Subsidiaries (or, following the consummation of the Offer and the other transactions contemplated by this Agreement, that would limit the ability of Parent or any of its Subsidiaries) to use the Company Intellectual Property or to sell to or purchase from any Person or to hire any Person, (C) that contains any “most favored nation”, “right of first offer”, “right of first access”, “right of first look” or “right of first refusal” terms and conditions (including with respect to pricing) or otherwise contains any type of special discount rights granted by the Company or any of its Subsidiaries, or (D) that contains any exclusivity obligations or restrictions or otherwise limits the freedom or right of the Company or any of its Subsidiaries to sell, distribute, license or manufacture any products or services or any technology or other assets to or for any other Person;
(iii) any Contract that prohibits the payment of dividends or distributions in respect of the capital stock of the Company or any of its Subsidiaries, the pledging of the capital stock or other equity interests of the Company or any of its Subsidiaries or prohibits the issuance of any guaranty by the Company or any of its Subsidiaries;
(iv) each Contract for any joint venture, partnership, strategic alliance, collaboration, joint development, joint commercialization, material research or development project or similar arrangement, excluding, in each case, any material transfer agreements entered into in the Ordinary Course of Business;
(v) any shareholders’, investor rights, registration rights, tax receivables or similar or related Contract or arrangement, or any Contract or arrangement relating to the exercise of any voting rights in respect of securities of the Company;
(vi) any Contract relating to Indebtedness and having an outstanding principal amount in excess of $300,000;
(vii) any Contract entered into since January 1, 2022 that relates to the acquisition or disposition of any material business, a material amount of stock or assets of any Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(viii) any Contract that by its terms calls for or otherwise may be incurred and all guarantees require royalties, milestone payments or similar payments, including upon the achievement of regulatory or commercial milestones, by the Company or any of its Subsidiaries under such Contract;
(ix) any Contract pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or other contingent payment obligations, in each case that could result in payments in excess of $300,000;
(x) any Contract that obligates the Company or any of its Subsidiaries to make any capital commitment, loan or similar expenditure;
(xi) any Contract with any Governmental Entity;
(xii) any Contract with a Top Supplier or involved in the supply or manufacturing of any debt obligations Product;
(xiii) any Contract (1) that relates to the research, testing, clinical trial, development, commercialization, manufacture, marketing, importation, exportation, sale, distribution, supply or license of any Product, including Contracts with contract manufacturing organizations or contract research organizations, or (2) under which clinical, pre-clinical or non-clinical data relating to any Product is or may be generated, and in each case that is material to the Company’s business;
(xiv) any Contract that requires a consent to or otherwise contains a provision relating to a “change in control,” or that would prevent, materially delay or impair the consummation of the transactions contemplated by this Agreement;
(xv) each lease, sublease or other person agreement under which the Company or any of its Subsidiaries leases, subleases or licenses any real property (other than whether as lessor or lessee);
(xvi) each Contract (1) relating to the employment of, or the performance of services by, any Service Provider reasonably expected to receive payments in excess of $250,000 per annum, (2) the terms of which obligate or may in the future obligate the Company or any of its Subsidiaries to make any severance, termination or similar payment to any current or former employee in excess of $250,000 per annum, (3) pursuant to which the Company or any of its Subsidiaries may be obligated to make any bonus or similar payment to any current or former employee or director in excess of $100,000, or (4) that provides for indemnification (or reimbursement or advancement of legal fees or expenses) of any current or former officer, director or employee of the Company or any of its Subsidiaries);
(xvii) each Contract not otherwise disclosed pursuant to this Section 2.16 requiring or otherwise involving the potential payment by or to the Company or any of its Subsidiaries of more than an aggregate of $300,000 per annum and that is not terminable without penalty by the Company or any of its Subsidiaries on less than 90 days’ notice; and
(xviii) each IP Contract. Each contract of the type described in clauses (i) through (xviii) is referred to herein as a “Material Contract.”
(i) Each Material Contract is valid and binding on the Company and any of its Subsidiaries, as applicable, and to the knowledge of the Company, each other party thereto, and is in full force and effect and enforceable in accordance with its terms; (ii) the Company and each of its Subsidiaries, and, to the knowledge of the Company, each other party thereto, has performed all material obligations required to be performed by it under each Material Contract; and (iii) there is no default or breach under any Material Contract by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto, and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a default or breach on the part of the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto under any such Material Contract, nor has the Company or any of its Subsidiaries received any notice of any such default, event or condition. The Company has made available to Parent true and complete copies of all written Material Contracts, including the respective aggregate principal amounts outstanding as of the date of this Agreementall amendments thereto.
Appears in 2 contracts
Sources: Transaction Agreement (Ironwood Pharmaceuticals Inc), Transaction Agreement (Ironwood Pharmaceuticals Inc)
Contracts. (a) All Contracts, including amendments thereto, required to be filed (whether or not filed by the Company with the SEC) as an exhibit to any report of the Company filed pursuant to the Exchange Act of the type described in Item 601(b)(10) of Regulation S-K promulgated by the SEC have been filed, and no such Contract has been amended or modified, except for such amendments or modifications which have been filed as an exhibit to a subsequently dated and filed Company SEC Document. All such filed Contracts (excluding any Contracts or amendments thereto that have been redacted or that are missing schedules or exhibits) shall be deemed to have been made available to Parent.
(b) Except as set forth on Section 3.13(b) of the Company Disclosure Letter, as of the date of this Agreement,
(i) Neither the Company nor any of its Subsidiaries is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it Company Subsidiary is a party to or bound by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) all Contracts Contract pursuant to which the Company or any of its Subsidiaries is a partyCompany Subsidiary has agreed not to compete with any Person in any area or to engage in any activity or business, or that purports pursuant to which any benefit or right is required to be binding upon the Companygiven or lost, any of its Subsidiaries or any penalty or detriment is incurred, as a result of its Affiliates, that contain a covenant restricting the ability of the Company so competing or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic areaengaging;
(Bii) all Contracts of Neither the Company nor any Company Subsidiary is a party to or bound by any Contract that provides for exclusivity or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership similar requirement or other similar agreements pursuant to which the Company or any Company Subsidiary is restricted in any way, or which after the Effective Time could restrict Parent or any Company Subsidiary in any way, with respect to the development, manufacture, marketing or distribution of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreementstheir respective products or services or otherwise with respect to the operation of their businesses, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") or pursuant to which any indebtedness benefit or right is required to be given or lost, or any penalty or detriment is incurred, as a result of non-compliance with any such exclusive or restrictive requirements or which requires the Company or any Company Subsidiary to refrain from granting license or franchise rights to any other Person;
(iii) Neither the Company nor any Company Subsidiary is a party to or bound by any Contract pursuant to which the Company or any Company Subsidiary has any obligation with (1) any Affiliate of the Company or any Company Subsidiary, (2) any Company Employees, (3) any union or other labor organization or (4) any Affiliate of its Subsidiaries is outstanding any such Person (other than, in each case, (I) offer letters or may be incurred and all guarantees of or employment agreements that are terminable at will by the Company or any Company Subsidiary both without any penalty and without any obligation of its Subsidiaries the Company or any Company Subsidiary to pay severance or other compensation or benefits (other than accrued base salary, accrued commissions, accrued bonuses, accrued vacation pay, accrued floating holidays and legally mandated benefits), and (II) Company Benefit Plans other than offer letters or employment agreements);
(iv) Neither the Company nor any Company Subsidiary is a party to or bound by any Contract under which the Company or any Company Subsidiary has incurred any indebtedness or has an obligation to incur indebtedness having an aggregate principal amount in excess of $200,000 or granting any debt obligations Lien on any asset of the Company or any Company Subsidiary;
(v) Neither the Company nor any Company Subsidiary is a party to or bound by any Inbound IP Contract as defined in Section 3.17(h);
(vi) Neither the Company nor any Company Subsidiary is a party to or bound by any Outbound IP Contract as defined in Section 3.17(h);
(vii) Neither the Company nor any Company Subsidiary is a party to or bound by any Contract that (A) grants the other person party to such Contract or a third party (other than the Surviving Corporation or its Subsidiaries) “most favored nation” pricing or terms that (1) apply to the Company or any Company Subsidiary or (2) following the Effective Time, would apply to Parent, the Surviving Corporation or any Company Subsidiary, or (B) except for any Contracts in the form of its Subsidiaries)purchase orders, including provide for fixed pricing for a term of 12 or more months;
(viii) Neither the respective aggregate principal amounts outstanding as Company nor any Company Subsidiary is a party to or bound by any Contract for any joint venture (whether in partnership, limited liability company or other organizational form) or alliance or similar arrangement;
(ix) Neither the Company nor any Company Subsidiary is a party to or bound by any Contract for any development, distribution or similar arrangement relating to any Company Product;
(x) Neither the Company nor any Company Subsidiary is a party to or bound by any Contract with any Governmental Entity;
(xi) Other than confidentiality agreements, neither the Company nor any Company Subsidiary is a party to or bound by or has adopted any agreement, retention program or incentive plan in connection with the transactions contemplated by this Agreement or the sale process leading to this Agreement; and
(xii) Neither the Company nor any Company Subsidiary is a party to or bound by any Contract involving the lease, license, use or occupancy of real property.
(c) Section 3.13(c) of the date Company Disclosure Letter sets forth (i) (A) the 10 largest customers of this Agreementthe Company and (B) the 10 largest customers of each Company Subsidiary (determined on the basis of revenues received by the Company or the applicable Company Subsidiary, respectively, in the fiscal year ended March 31, 2012) (each such customer, a “Major Customer”); (ii) (A) the 10 largest suppliers to the Company and (B) the 10 largest suppliers to each Company Subsidiary (determined on the basis of amounts paid by the Company or the applicable Company Subsidiary, respectively, in the fiscal year ended March 31, 2012) (the “Major Suppliers”); and (iii) (A) the top five contract manufacturers for the Company and (B) the top five contract manufacturers for each Company Subsidiary (determined on the basis of amounts paid by the Company or the applicable Company Subsidiary, respectively, in the fiscal year ended March 31, 2012) (the “Major Manufacturers”).
Appears in 2 contracts
Sources: Merger Agreement (Micronetics Inc), Merger Agreement (Mercury Computer Systems Inc)
Contracts. (ia) Neither the Company Parent nor any of its Subsidiaries is a party to or bound by any contract, arrangement, commitment or understanding (whether written or oral) (i) with respect to the employment of any directors, officers or employees other than in violation the ordinary course of business consistent with past practices, (ii) which, upon the consummation or breach stockholder approval of the transactions contemplated by this Agreement, will (either alone or upon the occurrence of any additional acts or events) result in any payment (whether of severance pay or otherwise) becoming due from Parent, Company, the Surviving Entity or any of their respective Subsidiaries to any director officer or employee thereof, (iii) which is a "material contract" (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) to be performed after the date of this Agreement that has not been filed or incorporated by reference in the Parent SEC Documents filed prior to the date hereof or (iv) which materially restricts the conduct of any line of business by Parent or otherwise restricts the operation of the business of Parent or its Subsidiaries or upon consummation of the Merger will materially restrict the ability of Parent or the Surviving Entity to engage in any line of business. Each contract, arrangement, commitment or understanding of the type described in this Section 5.10, whether or not set forth in the Parent Disclosure Schedule or in default under such Parent SEC Documents, is referred to herein as a "Parent Contract."
(nor does there exist b) (i) Each Parent Contract is valid and binding on Parent and any condition of its Subsidiaries that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party or by which it or any thereto, as applicable, and in full force and effect, (ii) Parent and each of its properties or assets is boundSubsidiaries has in all material respects performed all obligations required to be performed by it to date under each Parent Contract, except for violationswhere such noncompliance, breaches or defaults that either individually or in the aggregate have not had and aggregate, would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one Parent, and (iii) neither Parent nor any of its Subsidiaries knows of, or has good and marketable title to received notice of, the Company's manufacturing facility and executive and general offices located in Montpelierexistence of any event or condition which constitutes, Ohioor, free and clear after notice or lapse of all Liens time or both, will constitute, a material default on the part of Parent or any of its Subsidiaries under any such Parent Contract, except for Lienswhere such default, defects in title, easements, restrictive covenants and similar encumbrances that either individually or in the aggregate have not had and aggregate, would not reasonably be expected to have a Material Adverse Effect on the CompanyParent.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Bruker Daltonics Inc), Merger Agreement (Bruker Axs Inc)
Contracts. (i) Neither the Company nor any of its Subsidiaries is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party or by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii3.01(i) of the Company Disclosure Schedule Letter sets forth (with specific reference to the subsection of this Section 3.01(i) to which such Contract relates) a true complete and complete list correct list, as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) all Contracts each Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that is not so filed;
(B) each Contract pursuant 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) has agreed not to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company area or to engage in any activity or business, or pursuant to which any benefit or right is required to be given or lost, or any of its Subsidiaries with any Affiliate of the Company penalty or detriment (other than any immaterial penalty or detriment) is incurred, as a result of its Subsidiaries)so competing or engaging;
(C) all joint venture, partnership each Contract to or other similar agreements to by which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") or bound providing for exclusivity or any similar requirement or pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding restricted in any way, or may which after the Effective Time could restrict Parent or any of its Subsidiaries in any way, with respect to the development, manufacture, marketing or distribution of their respective products or services or otherwise with respect to the operation of their businesses, or pursuant to which any benefit or right is required to be given or lost, or any penalty or detriment (other than any immaterial penalty or detriment) is incurred, as a result of non-compliance with any such exclusive or restrictive requirements;
(D) each Contract to or by which the Company or any of its Subsidiaries is a party or bound or with respect to which the Company or any of its Subsidiaries has any obligation with any affiliate of the Company or any of its Subsidiaries;
(E) each Contract under which the Company or any of its Subsidiaries has incurred any Indebtedness having an aggregate principal amount in excess of $1,000,000 that is not scheduled as an exhibit to the Filed SEC Documents;
(F) each Contract to or by which the Company or any of its Subsidiaries is a party or bound creating or granting a Lien (including Liens upon properties or assets acquired under conditional sales, capital leases or other title retention or security devices), other than (1) Liens for taxes not yet due and all guarantees payable, that are payable without penalty or that are being contested in good faith and for which adequate reserves have been established, (2) Liens for assessments and other governmental charges or landlords’, carriers’, warehousemen’s, mechanics’, repairmen’s, workers’ or similar Liens incurred in the ordinary course of business, consistent with past practice, 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, consistent with past practice, in connection with workers’ compensation, unemployment insurance and other types of social security or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, performance and return of money bonds and similar obligations and (4) Liens incurred in the ordinary course of business consistent with past practice that, individually or in the aggregate, are not reasonably likely to adversely interfere in a material way with the use of the properties or assets encumbered thereby (collectively, “Permitted Liens”);
(G) each material Contract to or by which the Company or any of its Subsidiaries is a party or bound (other than Benefit Plans and Benefit Agreements) containing provisions requiring consent with respect to any “change in control” or similar provision with respect to the Company or one or more of its Subsidiaries, or otherwise having the effect of providing that the consummation of the Merger or any of the other transactions contemplated by this Agreement or the execution, delivery or effectiveness of this Agreement will materially conflict with, result in a material violation or material breach of, or constitute a default (with or without notice or lapse of time or both) under, such Contract, or give rise under such Contract to any right of, or result in, a termination, right of first refusal, material amendment, revocation, cancelation or material acceleration of any obligation, or a loss of a material benefit or the creation of any material Lien upon any of the properties or assets of the Company, Parent or any of their respective Subsidiaries, or to any increased, guaranteed, accelerated or additional material rights or material entitlements of any person;
(H) each Contract to or by which the Company or any of its Subsidiaries is a party or bound providing for payments of royalties or other license fees to third parties in excess of $5,000,000 annually, that is not terminable by the Company without penalty on ninety days or less notice;
(I) each Contract to or by which the Company or any of its Subsidiaries is a party or bound 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 or its Subsidiaries;
(J) each Contract pursuant to which the Company or any of its Subsidiaries has agreed or is required to provide any third party with access to (x) source code in respect of hardware (other than board-level hardware, such as reference designs) or (y) any other source code (other than, in the case of this subclause (y), access to customers in the ordinary course of business consistent with past practice of source code that is generally made available to customers of the Company or its Subsidiaries, it being understood that, for the avoidance of doubt, the exception in this parenthetical shall not apply to access to source code to business partners or other persons in connection with the development by the Company or any of its Subsidiaries of hardware products or related design services), and each Contract that provides for source code of the Company or any debt obligations of its Subsidiaries to be put in escrow or pursuant to which the Company or any other person of its Subsidiaries has agreed or is required to grant a contingent license to source code;
(other than K) each Contract containing any “non-solicitation”, “no-hire” or similar provision that restricts the Company or any of its Subsidiaries;
(L) each Contract to or by which the Company or any of its Subsidiaries is a party or bound for any joint venture (whether in partnership, limited liability company or other organizational form) or other revenue or profit sharing or similar arrangement;
(M) each Contract to or by which the Company or any of its Subsidiaries is a party or bound with any Governmental Entity (other than ordinary course customer Contracts providing for payments below $5,000,000 and pursuant to which the counterparty does not have any rights to the Company’s Products or Intellectual Property other than its rights to use the Product sold under such Contract as a customer);
(N) each Contract to or by which the Company or any of its Subsidiaries is a party or bound entered into in the last five years in connection with the settlement or other resolution of any suit, including claim action, investigation or proceeding that has any material continuing obligation, liability or restriction on the respective part of the Company or any of its Subsidiaries;
(O) each Contract between the Company or any of its Subsidiaries and any of the ten largest customers of the Company and its Subsidiaries (determined on the basis of revenues received by the Company or any of its Subsidiaries in the four consecutive fiscal quarter period ended September 30, 2010 (each such customer, a “Major Customer”, and each such Contract, a “Major Customer Contract”));
(P) each Contract between the Company or any of its Subsidiaries and any of the ten largest licensors or other suppliers to the Company and its Subsidiaries (determined on the basis of amounts paid by the Company or any of its Subsidiaries in the four consecutive fiscal quarter period ended September 30, 2010 (each such licensor or other supplier, a “Major Supplier”, and each such Contract, a “Major Supplier Contract”)); and
(Q) except for Contracts with customers and purchase orders with vendors or suppliers, in each case, entered into in the ordinary course of business consistent with past practice, and the Contracts disclosed above, each Contract (other than Benefit Plans or Benefit Agreements) which has aggregate principal amounts outstanding future sums due to or from the Company or any of its Subsidiaries, taken as of a whole, (i) 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 or (ii) in aggregate more than $10,000,000 during the life of the Contract. The Contracts of the Company or any of its Subsidiaries of the type referred to in clauses (A) through (Q) of this Section 3.01 are collectively referred to in this Agreement as “Specified Contracts”. The Company has made available to Parent a complete and correct copy of each of the Specified Contracts, including all amendments thereto. Each Specified Contract and each other Contract of the Company or any of its Subsidiaries that is material to the Company and its Subsidiaries taken as a whole (a “Material 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 the Company or such 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, subject to bankruptcy, insolvency, moratorium, reorganization or similar laws affecting the rights of creditors generally and the availability of equitable remedies. Each of the Company and its Subsidiaries has performed or is performing all material obligations required to be performed by it under the Material Contracts and is not (with or without notice or lapse of time or both) in breach in any material respect or default thereunder, and, other than in the ordinary course of business consistent with past practice, has not knowingly waived or failed to enforce any material rights or benefits thereunder, and, to the knowledge of the Company, no other party to any of the Material Contracts is (with or without notice or lapse of time or both) in breach in any material respect or default thereunder. 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 cancelation of any Material Contract. To the knowledge of the Company, there are no circumstances that are reasonably likely to occur that would reasonably be expected to adversely affect the ability of the Company or any of its Subsidiaries to perform its material obligations under any Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Qualcomm Inc/De), Merger Agreement (Atheros Communications Inc)
Contracts. (ia) Neither Except as set forth in the Company's SEC Reports or Schedule 3.17 of the Disclosure Schedule, neither the Company nor any of its Subsidiaries is a party to or bound by any (i) "material contract" (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) non-competition agreement or any other agreement or obligation which purports to limit in any respect the manner in which, or the localities in which, all or any material portion of the business of the Company and its Subsidiaries, taken as a whole, may be conducted, (iii) transaction, agreement, arrangement or understanding with any affiliate of the Company or such Subsidiary that would be required to be disclosed under Item 404 of regulation S-K under the Securities Act, (iv) voting or other agreement governing how any Shares shall be voted, (v) material agreement with any stockholders of the Company, (vi) acquisition, merger, asset purchase or sale agreement, or (vii) contract or other agreement which would prohibit or materially delay the consummation of the Merger or any of the Transactions (all contracts of the type described in clauses (i) through (vii) being referred to herein as "Material Contracts"). Each Material Contract is valid and binding on the Company (or, to the extent a Subsidiary of the Company is a party, such Subsidiary) and is in full force and effect and the Company and each Subsidiary have, in all material respects, performed all obligations required to be performed by them to date under each Material Contract, except where such noncompliance, individually or in the aggregate, would not have a Material Adverse Effect on the Company. Neither the Company nor any Subsidiary of the Company is in default or knows of, or has received notice of, any violation or breach of or in default under (nor nor, to the knowledge of the Company, does there exist any condition that upon which with the passage of time or the giving of notice or both would cause result in such a violation or breach of or default under) any Contract to which it is a party or by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or Material Contract.
(b) Except as disclosed in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually SEC Documents or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) Schedule 3.17 of the Company Disclosure Schedule sets forth a true and complete list or as of the date of provided for in this Agreement, and neither the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) all Contracts to which the Company or nor any of its Subsidiaries is a partyparty to any oral or written (i) employment, severance, retention or that purports to be binding upon the Companytermination agreements or consulting agreements not terminable on thirty (30) days' or less notice, (ii) union or collective bargaining agreement, (iii) agreement with any of its Subsidiaries executive officer or any of its Affiliates, that contain a covenant restricting the ability other key employee of the Company or any of its Subsidiaries (the benefits of which are contingent or whichvest, following or the consummation terms of which are materially altered, upon the Merger, could restrict occurrence of a transaction involving the ability of Parent Company or any of its SubsidiariesSubsidiaries of the nature contemplated by this Agreement, including the Company and its Subsidiaries(iv) agreement with respect to compete in any business executive officer or with any person or in any geographic area;
(B) all Contracts other key employee of the Company or any of its Subsidiaries with providing any Affiliate term of employment or compensation guarantee or (v) agreement or plan, including any stock option, stock appreciation right, restricted stock or stock purchase plan, any of the Company (other than benefits of which will be increased, or the vesting of the benefits of which will be accelerated, by the occurrence of any of its Subsidiaries);
(C) all joint venture, partnership the Transactions or other similar agreements to which the Company or value of any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to the benefits of which will be calculated on the basis of any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this AgreementTransactions.
Appears in 2 contracts
Sources: Merger Agreement (HSC Acquisition Corp), Merger Agreement (Hills Stores Co /De/)
Contracts. (ia) Neither Section 3.18(a) of the Company nor Disclosure Letter sets forth, as of the date hereof, any of its agreement, lease, license, use or occupancy agreement, contract, note, mortgage, indenture, arrangement or other binding obligation (each, a “Contract”) to which the Company or any Company Subsidiaries is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is currently a party to or by which it or any of its properties or assets is them are otherwise currently bound, except that is not filed as an exhibit to the Company SEC Documents or that is not a Contract which is posted and available for violationsreview by Parent as of 12:00 p.m., breaches Chicago time, on January 7, 2010, in the internet based data site maintained by the Company with ▇▇▇▇▇▇▇ Corporation and referred to commonly as the Krusher Data Site (the “Posted Data Room Documents”): (i) that would be required to be filed by the Company as an exhibit to any Company SEC Document pursuant to Item 601(b)(4) or defaults that 601(b)(10) of Regulation S-K under the Securities Act; (ii) pursuant to which the Company or any Company Subsidiary (A) licenses or otherwise obtains the right to use the Intellectual Property rights of any other Person (other than licenses for readily available commercial software or licenses of Intellectual Property which are not material to the manufacture or sale by the Company or any Company Subsidiary of any product of the Company or any Company Subsidiary), or (B) is restricted in any material respect in its right to use any Company Intellectual Property where any such material restriction would reasonably be expected to result, individually or in the aggregate aggregate, in a Company Material Adverse Effect; (iii) that, since January 1, 2003, relates to the acquisition or disposition of any material business or material real property (whether by merger, sale of stock, sale of assets or otherwise), not including any disposition which has been reflected in prior financial statements of the Company that have been filed as part of the Company SEC Documents; (iv) that relates to any acquisition of assets or of a business under which there is a future obligation on the part of the Company or any Company Subsidiary which would reasonably be expected to exceed $500,000 under any such Contract, including by means of an earn-out or similar contingent payment mechanism; (v) purporting to restrict or prohibit the Company or any Company Subsidiary from engaging or competing in the manufacture, marketing, distribution or sale of any of the products or services presently manufactured, marketed, distributed or sold by the Company or any Company Subsidiaries; (vi) that relates to any partnership, joint venture, strategic alliance or other similar arrangement (each a “JV”) in which the Company or any Company Subsidiary is a partner, member or party, excepting any JV with respect to which the Company or the Company Subsidiary which is a partner, member or party thereof has no remaining capital contribution obligation, no unperformed obligation to extend credit, and with respect to which it has no personal liability respecting such JV’s indebtedness, liabilities and obligations; (vii) that evidences or is the primary document under which there arises Indebtedness of the Company or any Company Subsidiary (other than agreements with or among direct or indirect wholly owned Company Subsidiaries) in excess of $1,000,000; (viii) under which the Company or any Company Subsidiary has advanced or loaned any other person the principal sum of more than $1,000,000, not including credit extended to customers in the ordinary course of business; (ix) that includes any guarantee by the Company or any Company Subsidiary of any debt or obligations which are in excess of $500,000 (other than any guarantee by the Company of a Company Subsidiary’s debts or obligations or a guarantee by a Company Subsidiary of the Company’s debts or obligations or another Company Subsidiary’s debts or obligations); (x) the performance of which involves expenditures or receipts of the Company or any Company Subsidiary in excess of $1,000,000 per year not entered into in the ordinary course of business; (xi) that provides 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, and was not made in the ordinary course of business by the Company or any Company Subsidiary; (xii) with any director or officer of the Company or any other employee of the Company or any Company Subsidiary earning noncontingent cash compensation in excess of $150,000 per year (including any employment, consulting, retention, severance, change in control, non-competition, termination or indemnification agreements); (xiii) that is a collective bargaining agreement or similar labor agreement with a labor union or labor organization with respect to employees of the Company or any Company Subsidiary; (xiv) to which the Company or any Company Subsidiary is a party with any Governmental Entity, excepting any such Contract made in the ordinary course of business and not to resolve any claimed liability for breach or violation of any law or regulation of governmental authority; (xv) that grants any party to the Contract or any other third party “most favored nation” pricing or terms under a Contract which may not be terminated on sixty (60) days or less notice by the Company or the Company Subsidiary which is a party to such Contract; (xvi) the failure to obtain consent in respect of, individually or in the aggregate, would reasonably be expected to result in a Company Material Adverse Effect and (xvii) that provides for termination, acceleration of payment or other special rights upon the occurrence of a change in control of the Company where such termination, acceleration of payment or other special right would reasonably be expected to be material to the Company (each such Contract described in clauses (i) through (xvii), each Contract filed as an exhibit to the Company SEC Documents and each of the Posted Data Room Documents that meets the description of any of clauses (i) though (xvii) is referred to herein as a “Company Material Contract”).
(b) A true, correct and complete copy of each Company Material Contract (and any amendments thereto) has been made available to Parent. Neither the Company nor any Company Subsidiary is in breach of or default under the terms of any Company Material Contract except for such breaches or defaults that, individually or in the aggregate, have not had and resulted in or would not reasonably be expected to have result in a Company Material Adverse Effect on Effect. To the knowledge of the Company. The , no other party to any Company Material Contract is in breach of or one default (with or without notice or lapse of its Subsidiaries has good and marketable title to time, or both) under the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear terms of all Liens any Company Material Contract except for Lienssuch breaches or defaults that, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate aggregate, have not had and resulted in or would not reasonably be expected to have result in a Company Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Effect. Each Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) all Contracts to which the Company or any of its Subsidiaries Material Contract is a party, or that purports to be valid and binding upon the Company, any of its Subsidiaries or any of its Affiliates, that contain a covenant restricting the ability obligation of the Company or any of its Subsidiaries (or whichthe Company Subsidiary which is party thereto and, following to the consummation knowledge of the MergerCompany, could restrict the ability of Parent or any of its Subsidiarieseach other party thereto, including the Company and its Subsidiariesis in full force and effect, except that (i) such enforcement may be subject to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint ventureapplicable bankruptcy, partnership insolvency, reorganization, moratorium or other similar agreements Laws, now or hereafter in effect, relating to which the Company or any creditors’ rights generally and (ii) equitable remedies of its Subsidiaries is a party (including all amendments specific performance and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures injunctive and other Contracts (collectively, "debt obligations") pursuant forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any indebtedness of the Company or any of its Subsidiaries is outstanding or proceeding therefor may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreementbrought.
Appears in 2 contracts
Sources: Rights Agreement (K Tron International Inc), Merger Agreement (K Tron International Inc)
Contracts. (ia) Neither As of the date hereof, except as set forth as an exhibit to the SEC Reports or on Section 4.7 of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries is a party to or any of their respective assets are bound by any:
(i) Contract relating to third-party indebtedness for borrowed money or any third-party financial guaranty in violation excess of $100 million;
(ii) Contract required to be filed as an exhibit to the Company’s Annual Report on Form 10-K pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act of 1933, as amended (the “Securities Act”);
(iii) Contract that contains any non-compete provision that limits or breach purports to limit, curtail or restrict the ability of the Company or any of its Subsidiaries to compete in any line of business, other than those that, in each case, would not be material to the Company or its Subsidiaries, taken as a whole; or
(iv) Contract with a third party containing a “standstill” that restricts the ability of the Company, its Subsidiaries or any of their respective Affiliates to acquire any of the securities or assets of such third party or its Affiliates.
(b) All Contracts of the type described in Section 4.7(a) above to which the Company or its Subsidiaries is a party to or by which their respective assets are bound by as of the date of this Agreement, together with the Contracts set forth on Section 4.7 of the Company Disclosure Letter and the Contracts filed as exhibits to the SEC Reports, are referred to herein as the “Material Contracts.” Prior to the date of this Agreement, the Company, subject to the Confidentiality Agreement, has made available to Parent, to the extent a correct, complete and unredacted copy of a Material Contract is not available to the public on the website maintained by the SEC, a correct, complete and unredacted copy of each Material Contract in existence as of the date hereof, together with any and all amendments and supplements thereto and material “side letters” and similar documentation relating thereto. Except, in each case, as has not, and would not reasonably be expected to have, individually or in the aggregate, a material adverse impact on the Company and its Subsidiaries, taken as a whole: (i) each Material Contract is valid and binding on the Company or its Subsidiaries and, to the knowledge of the Company, each other party thereto and is in full force and effect, and (ii) the Company and its Subsidiaries have performed and complied with all obligations required to be performed or complied with by it under each Material Contract. Except in any case of default as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (x) there is no default under any Material Contract by the Company or its Subsidiaries or, to the knowledge of the Company, by any other party, and (nor does there exist any condition y) no event has occurred that upon with the passage lapse of time or the giving of notice or both would cause such constitute a violation default thereunder by the Company or breach its Subsidiaries, or, to the knowledge of or default under) any Contract to which it is a party or by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company, by any other party. The To the knowledge of the Company, neither the Company or one nor any of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear received any written notice of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually termination or in the aggregate have not had and would not reasonably be expected to have a cancellation under any Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) all Contracts to which the Company or any of its Subsidiaries is a partyContract, or that purports to be binding upon the Company, received any notice of its Subsidiaries breach or any of its Affiliates, that contain a covenant restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete default in any business material respect under any Material Contract which breach or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreementdefault has not been cured.
Appears in 2 contracts
Sources: Merger Agreement (Genzyme Corp), Agreement and Plan of Merger (Sanofi-Aventis)
Contracts. (a) Seller has provided Buyer with access to copies of all material executory contracts, agreements and understandings, whether written or oral, to which Seller or Seller Parent is a party and which relate primarily to the Business, including contracts:
(i) Neither for employment of any person who is a full-time employee;
(ii) for the Company nor performance of services or delivery of goods by or to Seller of an amount or value in excess of $50,000;
(iii) for capital expenditures in excess of $50,000;
(iv) purporting to restrict Seller’s business activity or limit its ability to engage in a line of business or compete with another Person;
(v) involving any guarantee by Seller of its Subsidiaries the performance of another Person other than in the ordinary course of Business;
(vi) pursuant to which Seller is a licensor or licensee of Seller Intellectual Property; and
(vii) not in the ordinary course of business and providing for payments to a Person based on sales, purchases or profits, other than direct payment for goods. Seller has provided Buyer with access to copies of each of the listed agreements (or, in the case of oral agreements, written summaries) and of all amendments and modifications thereto, with appropriate redactions for information relating to any Affiliate of Seller.
(b) Except as set forth on Schedule 5.16, to the Knowledge of Seller, each Contract is in violation full force and effect and is binding and enforceable against the parties thereto in accordance with its terms except to the extent such enforceability may be limited by bankruptcy or other similar Laws relating to the enforcement of creditors’ rights generally and by general principles of equity. To the Knowledge of Seller, there exists no breach of, or event of default or in default under condition which (nor does there exist with or without compliance with any condition that upon applicable notice requirements, the passage of time or the giving both) would become an event of notice or both would cause such a violation or breach of or default under) , any contract, and no waiver, indulgence or postponement of any other party’s obligations under any Contract to which it is a party or by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Companyhas been granted. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company Seller has delivered to Parent prior Buyer or made available to Buyer for review complete and accurate copies of all Contracts, and there are no material oral agreements or understandings relating to the date Contracts. Except as set forth on Schedule 5.16, none of this Agreement truethe rights of Seller under any Contract are subject to termination or modification as a result of the transactions contemplated hereby. To the Knowledge of Seller, complete and correct copies (including all amendments and modifications thereto) of:
(A) all Contracts no party to which any Contract intends to cancel or terminate any Contract before the Company or any expiration 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreementcurrent term.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Speedway TBA, Inc.), Asset Purchase Agreement (Speedway Motorsports Inc)
Contracts. (ia) Neither the Company nor any of its Subsidiaries is a party to or bound by any contract, arrangement, commitment or understanding (whether written or oral) (i) with respect to the employment of any directors, officers or employees other than in violation the ordinary course of business consistent with past practices, (ii) which, upon the consummation or breach stockholder approval of the transactions contemplated by this Agreement, will (either alone or upon the occurrence of any additional acts or events) result in any payment (whether of severance pay or otherwise) becoming due from Parent, Company, the Surviving Entity or any of their respective Subsidiaries to any director officer or employee thereof, (iii) which is a "material contract" (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) to be performed after the date of this Agreement that has not been filed or incorporated by reference in the Company SEC Documents filed prior to the date hereof or (iv) which materially restricts the conduct of any line of business by Company or otherwise restricts the operation of the business of Company or its Subsidiaries or upon consummation of the Merger will materially restrict the ability of Parent or the Surviving Entity to engage in any line of business. Each contract, arrangement, commitment or understanding of the type described in this Section 4.10, whether or not set forth in the Company Disclosure Schedule or in default under such Company SEC Documents, is referred to herein as a "Company Contract."
(nor does there exist b) (i) Each Company Contract is valid and binding on Company and any condition of its Subsidiaries that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party or by which it or any thereto, as applicable, and in full force and effect, (ii) Company and each of its properties or assets is boundSubsidiaries has in all material respects performed all obligations required to be performed by it to date under each Company Contract, except for violationswhere such noncompliance, breaches or defaults that either individually or in the aggregate have not had and aggregate, would not reasonably be expected to have a Material Adverse Effect on the Company. The , and (iii) neither Company or one nor any of its Subsidiaries knows of, or has good and marketable title to received notice of, the Company's manufacturing facility and executive and general offices located in Montpelierexistence of any event or condition which constitutes, Ohioor, free and clear after notice or lapse of all Liens time or both, will constitute, a material default on the part of Company or any of its Subsidiaries under any such Company Contract, except for Lienswhere such default, defects in title, easements, restrictive covenants and similar encumbrances that either individually or in the aggregate have not had and aggregate, would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Bruker Daltonics Inc), Merger Agreement (Bruker Axs Inc)
Contracts. (ia) Neither the Company nor any of its Subsidiaries is in violation a party to, and none of their respective properties or breach other assets is subject to, any Contract that is of a nature required to be filed as an exhibit to a report or in default filing under (nor does there exist any condition that upon the passage of time Securities Act or the giving of notice or both would cause such a violation or breach of or default under) Exchange Act, other than any Contract to which it that is a party or by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title filed as an exhibit to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the CompanyFiled Company SEC Documents.
(iib) Except for Contracts filed in unredacted form as exhibits to the Filed Company Filed SEC Documents, Section 3.01(j)(ii3.10(b) of the Company Disclosure Schedule sets forth a true correct and complete list as of the date of this Agreement, and the Company has delivered made available to Parent prior to the date of this Agreement true, correct and complete and correct copies (including all amendments and modifications thereto) ), of:
(Ai) all Contracts (other than Contracts of the category required to be disclosed in either clause (ix) or clause (x) of this Section 3.10(b), regardless of value) of the Company or any of its Subsidiaries having an aggregate value per Contract, or involving payments by or to the Company or any of its Subsidiaries, of more than $500,000 on an annual basis;
(ii) all Contracts to which the Company or any of its Subsidiaries is a party, or that purports to be binding upon by which the Company, any of its Subsidiaries or any of its AffiliatesAffiliates is bound, that contain a covenant restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could would restrict the ability of Parent or any of its Subsidiaries, including the Company Surviving Entity and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(Biii) all Contracts (other than Contracts entered into in the ordinary course of business with all providers of health care, including, but not limited to, physicians, facilities and ancillary providers (each a "Provider")) of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(Civ) all joint venture, partnership or other similar agreements Contracts to which the Company or any of its Subsidiaries is a party granting any license to intellectual property (including all amendments other than trade and modifications thereto); andservice marks) and any other license (other than real estate) having an aggregate value per license, or involving payments to the Company or any of its Subsidiaries, of more than $500,000 on an annual basis;
(Dv) all loan agreementsconfidentiality agreements (other than in the ordinary course of business), credit agreementsagreements 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;
(vi) any Contract having an aggregate value per Contract, notesor involving payments by or to the Company or any of its Subsidiaries, debenturesof 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, bondsincluding in order to avoid termination of or loss of benefit under any such Contract;
(vii) all joint venture, mortgagespartnership or other similar agreements involving co-investment with a third party to which the Company or any of its Subsidiaries is a party;
(viii) except as set forth in Section 3.03, indentures and other all Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations indebtedness of any other person (other than the Company or any of its Subsidiaries), including ) (except for such indebtedness or guarantees the respective aggregate principal amounts outstanding as amount of which does not exceed $500,000 on an annual basis and excluding trade payables arising in the ordinary course of business);
(ix) the 25 largest Provider and the ten largest customer Contracts measured in terms of payments to or receipts from the Company and its Subsidiaries in the aggregate during the calendar year ending December 31, 2002;
(x) any Contract (other than a Contract with a Provider) that involves (1) annual premiums or payments of greater than $500,000 or annual administrative services fees or similar payments of greater than $500,000 and (2) by its terms, does not terminate within one year after the date of this Agreementsuch Contract and is not cancelable during such period without penalty or without payment (other than customer agreements that are not terminable within one year solely as a result of the Health Insurance Portability and Accountability Act and the regulations promulgated thereunder (including 45 C.F.R. parts 160, 162, and 164) or other statutory or regulatory requirements); and
(xi) any Contract, agreement or policy for reinsurance.
(c) None of the Company or any of its Subsidiaries is, or has received written notice or has Knowledge that any other party to any of its Contracts is, in violation or breach of or default (with or without notice or lapse of time or both) under, or 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, to the Knowledge of the Company, 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 Contract except, in each case for violations, breaches, defaults, waivers or failures to enforce rights or benefits that individually or in the aggregate have not had and would not reasonably be expected to have a Company Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Mid Atlantic Medical Services Inc), Merger Agreement (Unitedhealth Group Inc)
Contracts. (ia) Neither Except for this Agreement, or as filed with the Company SEC prior to the date of this Agreement, neither Parent nor any of its Subsidiaries is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party to or by which it or any of its properties or assets is boundbound by, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, any Contract (whether written or oral) (i) which is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) to Parent; or (ii) which constitutes a Contract or commitment relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset) in excess of $25,000,000 (all contracts of the type described in this Section 4.13(a) and the Company has delivered in Section 4.13(b) being referred to herein as “ Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:Material Contracts ”).
(Ab) all Section 4.13(b) of the Parent Disclosure Schedule contains a true and complete listing of the following 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party in effect on the date of this Agreement: (including all amendments i) each Contract containing a non-compete provision that, following the Effective Time, would by its terms materially restrict the ability of the Partnership or any of its Subsidiaries to compete in any line of business or with any Person or in any geographic area during any period of time after the Closing, (ii) each Contract involving the pending acquisition or sale of (or option to purchase or sell) any assets or properties outside the ordinary course of business that involves the payment or receipt of an aggregate amount in excess of $25,000,000 and modifications thereto); and
(Diii) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant each collective bargaining agreement to which any indebtedness of the Company Parent or any of its Subsidiaries is outstanding a party or may is subject.
(c) Except as would not have, either individually or in the aggregate, a Parent Material Adverse Effect, (i) each Parent Material Contract is valid and binding on Parent and any of its Subsidiaries, as applicable, and is in full force and effect; (ii) Parent and each of its Subsidiaries has in all material respects performed all obligations required to be incurred performed by it to date under each Parent Material Contract; and all guarantees (iii) neither Parent nor any of its Subsidiaries has received written notice of, or by to the Company Knowledge of Parent, knows of, the existence of any event or condition which constitutes, or, after notice or lapse of time or both, will constitute, a material default on the part of Parent or any of its Subsidiaries of under any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreementsuch Parent Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (MPLX Lp), Merger Agreement (Marathon Petroleum Corp)
Contracts. (ia) Neither All Contracts required to be filed as exhibits to the Company nor SEC Documents have been so filed in a timely manner. Section 3.15(a) of the Company Disclosure Letter sets forth a true and complete list of each of the following Contracts to which the Company, any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries or any of their assets or businesses are bound (and any amendments, supplements and modifications thereto):
(i) any Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) any Contract that is a non-competition Contract or other Contract that (A) limits in violation any material respect either the type of business in which the Company or breach any of the Subsidiaries of the Company (or, after the Effective Time, Parent or any of its Subsidiaries) or any of their respective Affiliates, may engage or the manner or geographic area in which any of them may so engage in any business, (B) would require the disposition, lease, license or other transfer of any material assets or line of business of the Company or any of its Subsidiaries (or, after the Effective Time, Parent or any of its Subsidiaries) or any of their respective Affiliates as a result of the consummation of the transactions contemplated by this Agreement, (C) is a Contract that grants a third party “most favored nation” or similar status that, following the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company or any of its Subsidiaries; (D) contains any “exclusivity” or similar provision for the benefit of a third party or otherwise prohibits or limits, in any material respect, except those Intellectual Property Agreements set forth in Section 3.18(c) of the Company Disclosure Letter, the right of the Company or any of its Subsidiaries (or, after the Effective Time, would prohibit or limit, in any material respect, the right of Parent or any of its Subsidiaries) to make, sell, market, advertise, promote, publicly display or distribute any products or services or use, transfer, license, distribute, defend or enforce any of their respective Intellectual Property Rights; (E) obligates the Company or any of its Subsidiaries to purchase or obtain a minimum or specified amount of any product or service from any Person; or (F) that involves the obligation or potential obligation of the Company or any of its Subsidiaries to make any “earn-out” or similar payments to any Person;
(iii) any indenture, loan or credit agreement, factoring agreement, security agreement, guarantee, note, mortgage, letter of credit, reimbursement agreement or other Contract, in any such case relating to indebtedness or other obligation of any Acquired Company having an outstanding principal amount in excess of $100,000 (except for such indebtedness between the Acquired Companies or guaranties by any Acquired Company of indebtedness of any Acquired Company);
(iv) any Contract relating to any material joint venture or partnership;
(v) any Contract, excluding any Real Property Lease, under which the Company or any of its Subsidiaries made or received payments of more than $250,000 during the fiscal year ended December 31, 2014 or reasonably expects to make or receive payments of more than $250,000 for the fiscal year ending December 31, 2015, and is not terminable upon notice of 30 days or less without penalty;
(vi) any Contract that restricts or prohibits the Company or any Subsidiary of the Company (or after the Effective Time would restrict or prohibit Parent or any of its Subsidiaries) from hiring or soliciting any individual to perform employment or consulting services;
(vii) any Contract establishing any material dealer, reseller, remarketer, distribution, joint marketing, exclusive arrangement or manufacturer arrangement, or similar agreement granting rights with regard to products or services of the Company or any of its Subsidiaries;
(viii) any Contract that provides for any standstill or similar restriction with respect to the Company or its securities;
(ix) any Contract for the lease of real property by the Company or any of its Subsidiaries that by its terms calls for aggregate annual rent payments of more than $100,000 by the Company and its Subsidiaries;
(x) any employment Contract that requires aggregate payments with respect to annual salary and target bonus in excess of $180,000 on an annual basis or is not terminable without cause by the Company or any of its Subsidiaries by notice of not more than sixty (60) days or without any termination payment or penalty, or any severance, retention, change in control or similar Contract;
(xi) any Contract with an independent contractor or consultant, including any Software development agreements, that requires aggregate payments in excess of $150,000 on an annual basis;
(xii) any collective bargaining agreement or other Contract with any labor organization, union or association or works council;
(xiii) any Contract that grants any rights of first refusal, rights of first negotiation or other similar rights to any Person with respect to any material asset of the Company and its Subsidiaries;
(xiv) any Contract that relates to any material interest rate, derivatives or hedging transaction (including with respect to commodities);
(xv) any Contract that relates to the acquisition or disposition of any business, capital stock or assets (whether by merger, sale of stock, sale of assets or otherwise), other than a Contract to purchase or license of technology, goods, services, or other assets in the ordinary course of business, under which the Company or any of its Subsidiaries has any outstanding contingent or other obligations that are material to the Company and its Subsidiaries, taken as a whole;
(xvi) any Contract that is a settlement or similar Contract with any Governmental Entity or any other Person or an order, judgment, writ, stipulation, award, injunction or decree of a Governmental Entity or arbitrator to which the Company or any of its Subsidiaries, or any of their respective assets or properties, is subject that is, in each case, material to the Company and its Subsidiaries, taken as a whole;
(xvii) any Contract purporting to indemnify or hold harmless any director, officer or employee of the Company or any of its Subsidiaries (other than the Company Constituent Documents or organizational documents of the Company’s Subsidiaries); and
(xviii) any Contract to which any holder of more than five percent (5%) of the capital stock or other securities of the Company is a party or that is required to be disclosed by the Company pursuant to Item 404 of Regulation S-K under the Securities Act, other than Contracts related to the granting, vesting, exercise, issuance or delivery of equity-based awards under the Company Equity Plans and Contracts that are Company Plans. Each such Contract as described in this Section 3.15(a) or Section 3.18(c) or listed in Section 3.15(a) or Section 3.18(c) of the Company Disclosure Letter, a “Material Contract”.
(b) True and complete copies of all Material Contracts of the Company, its Subsidiaries have been made available to Parent in the Data Room in accordance with all applicable Laws. For purposes of this Agreement, “Contract” means any note, bond, mortgage, indenture, contract, arrangement, undertaking, purchase order, bid, agreement, lease, license agreement or other instrument or obligation (whether written or oral), together with all amendments thereto. Each Material Contract 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, and is in full force and effect, except in each case for such failures to be valid and binding or to be in full force and effect that, individually or in the aggregate, have not had, and would not reasonably be expected to have, a Material Adverse Effect. Except as required or permitted by this Agreement after the date of this Agreement, the Company has not terminated, waived, amended, released or modified in any respect any provision of any standstill or similar agreement with respect to the Company or any Subsidiary of the Company to which it is currently or has, within the 12 months immediately preceding the date hereof, been a party. Except, individually or in the aggregate, as has not had, and would not reasonably be expected to have, a Material Adverse Effect, and there is no default under (nor does there exist any condition 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 upon with the passage lapse of time or the giving of notice or both would cause such constitute a violation or breach of or default under) any Contract to which it is a party or by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or thereunder by the Company or any of its Subsidiaries party thereto or, to the knowledge of any debt obligations of the Company, any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreementparty thereto.
Appears in 2 contracts
Sources: Merger Agreement (Knowles Corp), Merger Agreement (Audience Inc)
Contracts. (ia) Neither As of the Company date of this Agreement, neither Parent nor any of its Subsidiaries is a party to or bound by any contract, arrangement, commitment or understanding (whether written or oral) (i) which is a “material contract” (as such term is defined in violation Item 601(b)(10) of Regulation S-K of the SEC) to be performed after the date of this Agreement that has not been filed or breach incorporated by reference in the Parent SEC Documents, or (ii) which materially restricts the ability of or in default under (nor does there exist any condition that upon the passage of time Parent or the giving surviving corporation to engage in any line of notice business. Each contract, arrangement, commitment or both would cause understanding of the type described in clause (i) of this Section 4.15(a) is referred to herein as a “Parent Contract” (for purposes of clarification, each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) to be performed after the date of this Agreement, whether or not filed with the SEC, is a violation or breach Parent Contract).
(b) (i) Each Parent Contract is valid and binding on Parent and any of or default under) any Contract to which it its Subsidiaries that is a party thereto, as applicable, and in full force and effect (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or by which it affecting creditors’ rights generally, and general equitable principles (whether considered in a proceeding in equity or any at law)), (ii) Parent and each of its properties or assets is boundSubsidiaries has in all material respects performed all obligations required to be performed by it to date under each Parent Contract, except for violationswhere such noncompliance, breaches or defaults that either individually or in the aggregate have not had and aggregate, would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one Parent, and (iii) neither Parent nor any of its Subsidiaries has good and marketable title to Knowledge of, or has received notice of, the Company's manufacturing facility and executive and general offices located in Montpelierexistence of any event or condition which constitutes, Ohioor, free and clear after notice or lapse of all Liens time or both, will constitute, a material default on the part of Parent or any of its Subsidiaries under any such Parent Contract, except for Lienswhere such default, defects in title, easements, restrictive covenants and similar encumbrances that either individually or in the aggregate have not had and aggregate, would not reasonably be expected to have a Material Adverse Effect on the CompanyParent.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Landamerica Financial Group Inc), Merger Agreement (Capital Title Group Inc)
Contracts. (ia) Neither Except as set forth in the Company nor Seller Disclosure Schedule, none of Seller, any of its Subsidiaries Subsidiaries, or to the knowledge of Seller, any other party is in breach or violation or breach of or in default under (nor does there exist in the performance or observance of any condition that upon the passage term or provision of time any contract, agreement, indenture, mortgage, loan agreement, note, lease or the giving of notice or both would cause such a violation or breach of or default under) any Contract other instrument to which it Seller or any such Subsidiary is a party or by which it Seller or any such Subsidiary is bound or to which any of its the properties of Seller or assets any such Subsidiary is boundsubject, except for violationswhich breach, breaches violation or defaults that default would be reasonably likely to, individually or in the aggregate have not had and would not reasonably be expected to aggregate, have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the CompanySeller.
(iib) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company The Seller Disclosure Schedule sets forth a true and complete correct list of (i) all contracts or agreements between or among Seller or any Subsidiary of Seller, one the one hand, and any other Person, on the other hand, which are terminable or which contain any provision that would be triggered as a result of the date consummation of any of the transactions contemplated by this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(Aii) all Contracts to which contracts or agreements between Seller or any Subsidiary of Seller, on the Company one hand, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or any of its Subsidiaries his affiliates, on the other hand, (collectively, the "RL Agreements"), (iii) all capital stock or ownership interests directly or indirectly owned by Seller in any Persons owning or operating commercial television broadcasting companies or owning any licenses with respect thereto (the "Seller Broadcast Properties") and (iv) all material contracts or agreements with, or other commitments to, any other shareholder, partner, joint venturer or Person owning an interest in any Seller Broadcast Property or licenses pertaining thereto (collectively, the "Seller Broadcast Contracts"). Except as disclosed in the Seller Disclosure Schedule or as would not have a Material Adverse Effect on Seller, the interests referred to in clause (iii) of the immediately preceding sentence, together with the Seller Broadcast Contracts, are sufficient to ensure the continued enjoyment, after the Closing Date, by the Surviving Company of the businesses owned and operated by the Seller Broadcast Properties.
(c) The Seller Broadcast Contracts have been duly executed and delivered and constitute valid and binding obligations of the parties thereto, enforceable against the parties thereto in accordance with their respective terms except to the extent any lack of enforceability would not be reasonably likely to, individually or in the aggregate, have a Material Adverse Effect on Seller.
(d) Seller has disclosed to the Surviving Company all written communications between any Person having an interest in the broadcast license with respect to NOVA TV or any regulatory authority having jurisdiction over the operations of NOVA TV, on the one hand, and Seller or any Subsidiary of Seller, on the other hand, with respect to Seller's interest in NOVA TV.
(e) Except as set forth in the Seller Disclosure Schedule, neither Seller nor any Subsidiary is a partyparty to, or that purports to be binding upon the Companyis otherwise subject to, any of its Subsidiaries agreement or commitment (i) granting registration rights, including piggyback rights, to any Person, or (ii) containing any non-competition or similar agreement which restricts the businesses which may be engaged in by Seller or any of its Affiliates, that contain a covenant restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or affiliate thereof in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreementlocation.
Appears in 2 contracts
Sources: Reorganization Agreement (Lauder Ronald S), Reorganization Agreement (Central European Media Enterprises LTD)
Contracts. The JV is not a party to any contracts other than the JV Agreement. All of the Contracts that are material to the business of the Entities or their Subsidiaries, taken as a whole, are listed on Schedule 4.7, with the exception of interests in real property and construction contracts and master services agreements or purchase orders entered into in the Ordinary Course of Business and retained by MIDSTREAM as operator of the Assets. The Entities and their Subsidiaries are not in default and there is no event or circumstance that with notice, or lapse of time or both, would constitute an event of default by the applicable Entity or Subsidiary under the terms of the Contracts. All of the Contracts of the Entities and their Subsidiaries are in full force and effect and to HOLDINGS’ and MIDSTREAM’S Knowledge, no counter-party to any of the Contracts is in default under the terms of such Contracts. Schedule 4.7 lists each Contract to which the Entitles or their Subsidiaries are a party that:
(a) expressly obligates an Entity to pay an amount of $500,000 (to the 100% Subject Interests) or more and has not been fully performed as of the date hereof;
(b) expressly restricts the ability of an Entity or its Subsidiaries to compete or otherwise to conduct its business in any manner or place;
(c) provides for the sale of products or the provision of services (for a term greater than a year) for amounts in excess of $500,000 (to the 100% Subject Interests and including outstanding offers or quotes which by acceptance would create such a Contract) and which have not been fully performed as of the date hereof;
(d) provides a right of first refusal or other restrictive right that limits the ability to transfer, sell or assign an interest in the Assets or an equity interest in the Entities or any Subsidiary;
(e) is a master agreement, swap, derivative, option, future or similar type Contract or any open agreement or position thereunder;
(f) is with any current or former employee, officer, director or consultant of HOLDINGS or an Entity, their Subsidiaries or their respective Affiliates;
(g) is an inter-company agreement;
(h) is with any labor union or association;
(i) Neither is a partnership or joint venture agreement with a Third Person in which the Company nor any of its Subsidiaries is in violation Entities or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it their Subsidiaires is a party or by which it or any of them are bound;
(j) is an agreement with a consideration in excess of $500,000 (to the 100% Subject Interests) by an Entity or its properties Subsidiaries to purchase or sell any assets is bound, except for violations, breaches or defaults that individually or (other than inventory in the aggregate Ordinary Course of Business), businesses, capital stock or other debt or equity securities of any Person and which have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list been fully preformed as of the date hereof; or
(k) is an agreement with a consideration in excess of this Agreement$500,000 (to the 100% Subject Interests) involving the merger, and the Company has delivered to Parent consolidation, purchase, sale, transfer or other disposition of interests in real property, capital stock or other debt or equity securities of any Person prior to the date of this Agreement true, complete Closing and correct copies (including all amendments and modifications thereto) of:
(A) 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding have not been fully preformed as of the date of this Agreementhereof.
Appears in 2 contracts
Sources: Contribution Agreement, Contribution Agreement (DCP Midstream Partners, LP)
Contracts. (ia) Neither Except for this Agreement, neither the Company nor any of its Subsidiaries is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it Company Subsidiary is a party to any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act (a “Filed Company Contract”) that has not been so filed.
(b) Section 3.13(b) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a true and complete list, and the Company has made available to Parent true and complete copies, of (i) each agreement, Contract, understanding, or by undertaking to which it the Company or any of its properties the Company Subsidiaries is a party that (A) restricts the ability of the Company or the Company Subsidiaries to compete in any business or with any Person in any geographical area in a manner that is material to the Company and the Company Subsidiaries, taken as a whole, (B) would, to the Knowledge of the Company, restrict in any material respect the ability of Parent or any of the Parent Subsidiaries to compete in any business or with any Person in any geographical area after the Effective Time, (C) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party in a manner that is material to the Company and the Company Subsidiaries, taken as a whole, (D) provides for “exclusivity” or any similar requirement in favor of any third party in a manner that is material to the Company and the Company Subsidiaries, taken as a whole, or (E) would require disclosure under Item 404 of SEC Regulation S-K, (ii) each loan and credit agreement, Contract, note, debenture, bond, indenture, mortgage, security agreement, pledge, or other similar agreement pursuant to which any material Indebtedness of the Company or any of the Company Subsidiaries is outstanding or may be incurred, other than any such agreement between or among the Company and the wholly owned Company Subsidiaries, (iii) each Company Lease, (iv) each partnership, joint venture or similar agreement, Contract, understanding or undertaking to which the Company or any of the Company Subsidiaries is a party relating to the formation, creation, operation, management or control of any partnership or joint venture, in each case, material to the Company and the Company Subsidiaries, taken as a whole, (v) each Company License Agreement, (vi) each Contract under which the Company or any Company Subsidiary provides an express covenant not to ▇▇▇ for infringement of Patent Rights, and (vii) each agreement, Contract, understanding or undertaking relating to the disposition or acquisition by the Company or any of the Company Subsidiaries of any material business or any material amount of assets (excluding dispositions or acquisitions which were consummated prior to the date of this Agreement and with respect to which there is boundno ongoing liability or obligation of the Company or any Company Subsidiaries). Each agreement, except Contract, understanding or undertaking of the type described in this Section 3.13(b) and each Filed Company Contract is referred to herein as a “Company Material Contract”.
(c) Except for violationsmatters which, breaches or defaults that individually or in the aggregate aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect Effect, (i) each Company Material Contract (including, for purposes of this Section 3.13(c), any Contract entered into after the date of this Agreement that would have been a Company Material Contract if such Contract existed on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement) is a valid, binding and legally enforceable obligation of the Company has delivered to Parent prior or one of the Company Subsidiaries, as the case may be, and, to the date Knowledge of this Agreement truethe Company, complete of the other parties thereto, except, in each case, as enforcement may be limited by the Bankruptcy and correct copies Equity Exception, (including all amendments ii) each such Company Material Contract is in full force and modifications theretoeffect and (iii) of:
(A) all Contracts to which the none of Company or any of its the Company Subsidiaries is a party(with or without notice or lapse of time, or that purports both) in breach or default under any such Company Material Contract and, to be binding upon the Knowledge of the Company, no other party to any such Company Material Contract is (with or without notice or lapse of its Subsidiaries time, or any of its Affiliates, that contain a covenant restricting the ability of the Company both) in breach or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreementdefault thereunder.
Appears in 2 contracts
Sources: Merger Agreement (Engility Holdings, Inc.), Merger Agreement (Science Applications International Corp)
Contracts. (a) As of the date hereof, except as set forth as an exhibit to the Company SEC Documents and on Section 3.10(a) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries is a party to or bound by any:
(i) Contract relating to third-party indebtedness for borrowed money or any third-party financial guaranty in excess of $50,000.00;
(ii) non-competition agreements or any other agreements or arrangements that materially restrict the Company or any of its Subsidiaries or any of their respective Affiliates from engaging or competing in any line of business or in any geographic area, or which would so restrict the Company or any of its Subsidiaries following a change in control of the Company; or
(iii) Contract required to be filed as an exhibit to the Company’s Annual Report on Form 10-K pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act.
(b) All Contracts of the type described in clauses (a)(i), (ii) and (iii) above to which the Company or any of its Subsidiaries is a party to or bound by as of the date of this Agreement, together with the Contracts set forth on Section 3.10(b) of the Company Disclosure Letter, are referred to herein as the “Company Material Contracts” (provided that for purposes of Section 5.1, Contracts of the type referred to in clause (i) above shall not be deemed to be Company Material Contracts). Except, in each case, as has not, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect: (i) 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 the Company, each other party thereto, subject to the Bankruptcy and Equity Exception, (ii) all Company Material Contracts are in full force and effect, (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 Knowledge of the Company, 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 Knowledge of the Company, any other party to any Company Material Contract, has repudiated in writing any material provision thereof. Neither the Company nor any of its Subsidiaries is in has Knowledge of, or has received written notice of, any violation or breach of or in default under (nor does there exist or any condition that upon which with the passage of time or the giving of notice or both would cause such a violation or breach of or default under or permit termination, modification or acceleration under) any Company Material Contract or any other Contract to which it is a party or by which it or any of its material properties or assets is bound, except for violations, breaches violations or defaults that are not, individually or in the aggregate have not had and would not aggregate, reasonably be expected likely to have result in a Company Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the CompanyEffect.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Sykes Enterprises Inc), Merger Agreement (Ict Group Inc)
Contracts. (a) Section 3.15(a) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a true, correct and complete list of each of the following Contracts to which any Acquired Company is a party or to or by which any Acquired Company or any of its assets or businesses is subject or bound (and any amendments, supplements and modifications thereto):
(i) Neither any Contract that is a non-competition Contract or other Contract that (A) purports to limit in any material respect either the type of business in which any Acquired Company nor (or, after the Effective Time, any Parent Company) or any of its Subsidiaries Affiliates may engage or the manner or geographic area in which any of them may so engage in any business, (B) would reasonably be expected to require the disposition of any material assets or type of business of any of the Acquired Companies (or, after the Effective Time, any Parent Company) or any of their respective Affiliates in connection with the consummation of the Transactions, (C) is a Contract that grants “most favored nation” or similar status that has had, or would reasonably be expected to have, a material impact on the Acquired Companies, taken as a whole, following the Effective Time, would apply to Parent or any of its Subsidiaries, including any of the Acquired Companies, (D) contains any exclusivity, preferred status or similar provision that prohibits or limits in any material respect the right of any of the Acquired Companies (or, after the Effective Time, would prohibit or limit in any material respect the right of any of the Acquired Companies or the Parent Companies) to make, sell, market, advertise or distribute any products or services, use, transfer, license, distribute or enforce any of their respective Intellectual Property rights or otherwise conduct its business, (E) obligates any of the Acquired Companies to purchase or obtain a minimum or specified amount of any product or service from any Person for more than $500,000 in the aggregate on an annual basis or (F) involves the obligation or potential obligation of any of the Acquired Companies to make any earn-out or similar payments to any Person;
(ii) (A) any indenture, loan or credit agreement, security agreement, guarantee, note, mortgage, letter of credit, reimbursement agreement or other Contract, in any such case relating to indebtedness of any Acquired Company having an outstanding principal amount in excess of $1,000,000 (except for such indebtedness between the Acquired Companies or guaranties by any Acquired Company of indebtedness of any other Acquired Company (not including guaranties by any Company Insurance Subsidiary or of indebtedness of any Company Insurance Subsidiary)) or (B) any guarantee by any Company Insurance Subsidiary of indebtedness or any other obligation of any other Acquired Company or other Affiliate of such Company Insurance Subsidiary;
(iii) any Contract relating to any joint venture, strategic alliance or partnership material to the Acquired Companies, taken as a whole;
(iv) any Contract under which any of the Acquired Companies made payments of more than $750,000 during the fiscal year ended December 31, 2017 or reasonably expects to make payments of more than $750,000 during the fiscal year ending December 31, 2018 and, in either case, is not terminable by any Acquired Company upon notice of sixty (60) days or less without penalty;
(v) any Contract under which any of the Acquired Companies received payments of more than $500,000 during the fiscal year ended December 31, 2017 or reasonably expects to receive payments of more than $500,000 during the fiscal year ending December 31, 2018;
(vi) (A) any reinsurance treaty or agreement, including any retrocessional agreement, that is material to any Acquired Company pursuant to which any Acquired Company cedes or assumes business, (B) any such treaty or agreement or instrument that has been funded (in whole or in part) by third party capital or (C) any trust agreement, security agreement or other form of collateral agreement entered into in connection with any Contract covered by the immediately foregoing clauses (A) or (B) (collectively, the “Company Reinsurance Agreements”);
(vii) (A) any Contract with any Company Agent that, during the fiscal year ended December 31, 2017, produced insurance policies or contracts issued by an Company Insurance Subsidiary which resulted in greater than five percent (5%) of the Company Insurance Subsidiaries’ gross written premiums for the year ended December 31, 2017 or (B) any Contract with any Company Agent that is a managing general agency contract or a managing general underwriting contract under applicable Law;
(viii) any Contract that provides for any standstill or similar restriction pursuant to which any Acquired Company has agreed to restrictions on the acquisition of assets or securities of another Person or to which another Person has agreed to restrictions on the acquisition of assets or securities of any Acquired Company;
(ix) any employment Contract that requires aggregate payments with respect to annual salary and target bonus in excess of $350,000 on an annual basis or is not terminable without cause by any of the Acquired Companies by notice of not more than sixty (60) days or without any termination payment or penalty, or any severance, retention, change in control or similar Contract;
(x) any Contract that grants any rights of first refusal, rights of first offer, rights of first negotiation or other similar rights to any Person with respect to any material asset, property or business of the Acquired Companies, taken as a whole;
(xi) any Contract that relates to the acquisition or disposition of any business, capital stock or assets (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration in excess of $3,000,000 under which any of the Acquired Companies has any outstanding earn out, deferred payment, indemnification or contingent obligations, other than this Agreement and any Contract to purchase or sell goods or services in the ordinary course of business consistent with past practice;
(xii) any Contract that requires the Acquired Companies to make any capital commitments or capital expenditures in excess of $1,000,000 during any twelve (12) month period following the date of this Agreement;
(xiii) any Contract that is a settlement or similar Contract with any Governmental Entity or any other Person to which any of the Acquired Companies or any of its assets or properties is subject with material ongoing obligations of any of the Acquired Companies, taken as a whole;
(xiv) any Contract purporting to indemnify or hold harmless any director, officer or employee of any of the Acquired Companies (other than the Company Charter, the Company Regulations and the organizational documents of the Company’s Subsidiaries);
(xv) any Contract that is required to be disclosed by the Company pursuant to Item 404 of Regulation S-K under the Securities Act;
(xvi) any lease, license, occupancy agreement, sublease, waiver, side letter or guaranty relating to any real property which any Acquired Company leases, uses or occupies or has the right to lease, use or occupy (collectively, the “Company Real Property Leases”);
(xvii) any Contract pursuant to which any Intellectual Property right that is material to the Acquired Companies, taken as a whole, is licensed or sold to or by any Acquired Company, other than (A) license agreements for any non-customized commercially available Software, (B) Contracts between an Acquired Company, on the one hand, and an employee or consultant of an Acquired Company, on the other hand, entered into in the ordinary course of business consistent with past practice and (C) Contracts which contain non-exclusive licenses or sublicenses or sales of such Intellectual Property between an Acquired Company, on the one hand, and a supplier, vendor, agent or broker of an Acquired Company, on the other hand, entered into in the ordinary course of business consistent with past practice;
(xviii) any disaster recovery or data center Contract;
(xix) any Contract entered into prior to the date hereof that is required to be filed by the Company in a future report to be filed or furnished to the SEC as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act, excluding those compensatory plans described in Item 601(b)(10)(iii) of Regulation S-K under the Securities Act, that has not been filed as an exhibit to or incorporated by reference in the Company SEC Documents filed prior to the date of this Agreement; and
(xx) any Contract that would or would reasonably be expected to prevent, materially delay or impair the consummation of the Transactions. All Contracts required to be filed as exhibits to the Company SEC Documents have been so filed in a timely manner. Each Contract entered into prior to the date hereof that is required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act, excluding those compensatory plans described in Item 601(b)(10)(iii) of Regulation S-K under the Securities Act, and each Contract required to be listed in Section 3.15(a) or Section 3.18(c) of the Company Disclosure Letter is referred to herein as a “Material Company Contract.”
(b) True, correct and complete copies (subject to apparent redactions) of all Material Company Contracts have been made available to Parent in accordance with all applicable Laws. Each Material Company Contract is valid and binding on each Acquired Company party thereto and, to the knowledge of the Company, each other party thereto and is in violation full force and effect, except in each case for such failures to be valid and binding or breach of to be in full force and effect that, individually or in the aggregate, have not had, and would not reasonably be expected to have, a Company Material Adverse Effect, subject to the Enforceability Limitations. The Company has not terminated, waived, amended, released or modified in any respect any provision of any standstill or similar agreement with respect to the Company to which it is currently or has, within the twelve (12) months immediately preceding the date hereof, been a party. Except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Company Material Adverse Effect, there is no breach or default under (nor does there exist any condition Material Company Contract by any of the Acquired Companies party thereto or, to the knowledge of the Company, any other party thereto and no event has occurred that upon with the passage lapse of time or the giving of notice or both would cause such constitute a violation or breach of or default under) any Contract to which it is a party or thereunder by which it or any of its properties or assets is boundthe Acquired Companies party thereto or, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear knowledge of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Infinity Property & Casualty Corp), Agreement and Plan of Merger (KEMPER Corp)
Contracts. (ia) Neither As of the date hereof, neither the Company nor any of its the Company Subsidiaries is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party to or bound by which it or any of its properties or assets Contract (i) that is bound, except for violations, breaches or defaults that individually or a “material contract” (as such term is defined in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(iiItem 601(b)(10) of the Company Disclosure Schedule sets forth a true and complete list as Regulation S−K of the date of this Agreement, and the Company has delivered SEC) to Parent prior to be performed after the date of this Agreement truethat has not been filed or incorporated by reference in the Company SEC Documents filed prior to the date hereof, complete (ii) that contains a non−compete or client or customer non−solicit requirement or other provision that materially restricts the conduct of, or the manner of conducting, any line of business material to the Company and correct copies (including all amendments and modifications thereto) of:
(A) all Contracts the Company Subsidiaries, taken as a whole, or, to which the Knowledge of Company, upon consummation of the Merger could materially restrict the ability of Parent, the Surviving Company or any of its their respective Subsidiaries to engage in any material line of business and, in each case, that is a partymaterial, or (iii) that purports to be binding upon the Company, any of its Subsidiaries obligates Company or any of its Affiliatesthe Company 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 Company or any of their respective Subsidiaries to conduct business with any third party on an exclusive or preferential basis, and in each case, that contain is material, (iv) the absence of which would reasonably be likely to result in a covenant restricting Company Material Adverse Effect, (v) would prohibit or materially delay the consummation of the Merger or otherwise impair the ability of the Company to perform its obligations hereunder, (vi) requires or is reasonably likely to require either (x) annual payments from Third Parties to the Company and the Company Subsidiaries of at least $500,000 in the aggregate or (y) annual payments from the Company and Company Subsidiaries to Third Parties of at least $500,000 in the aggregate except, in the case of each of the foregoing clauses (x) and (y), for Contracts that provide for payments to attorney providers or the payment of commissions, (vii) involves any directors, executive officers (as such term is defined in the Exchange Act) or 5% shareholders of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person their Affiliates (other than the Company or any of its Subsidiaries)Company Subsidiary) or immediate family members; or (viii) contains any covenant granting “most favored nation” status that, including following the Merger, would apply to or be affected by actions taken by Parent, the Surviving Corporation and/or their respective aggregate principal amounts outstanding as of Subsidiaries or Affiliates. Each Contract described in the date of this Agreementimmediately preceding sentence being a “Material Contract”.
Appears in 2 contracts
Sources: Merger Agreement (Pre Paid Legal Services Inc), Merger Agreement (Pre Paid Legal Services Inc)
Contracts. (i) Neither the Company nor any of its Subsidiaries is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party or by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts as filed in unredacted form as exhibits to the Company Filed Parent SEC DocumentsFilings filed prior to the date of this Agreement, or as disclosed in Section 3.01(j)(ii) 4.9 of the Company Parent Disclosure Schedule sets forth a true and complete list Letter, as of the date of this AgreementAgreement neither Parent nor any Parent Subsidiary is a party to or bound by any Contract (each a “Parent Material Contract”) that (i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), and the Company has delivered to Parent prior to the date (ii) is with any Affiliate of this Agreement trueParent, complete and correct copies (including all amendments and modifications thereto) of:
other than any Contract (A) all Contracts to which is or has been fully performed and under which Parent has no continuing right, liability or obligation, or (B) that is otherwise disclosed on the Company Parent Disclosure Letter and marked with a footnote indicating that it is a Contract with an Affiliate of Parent, or (iii) limits or otherwise restricts Parent or any of its Subsidiaries is a party, Parent Subsidiary or that purports to be binding upon would, after the CompanyEffective Time, any of its Subsidiaries limit or any of its Affiliates, that contain a covenant restricting the ability of the Company restrict Parent or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company Surviving Corporation and its Subsidiaries) to compete or any successor thereto, from engaging or competing in any line of business or with any person or in any geographic area;
(B) all Contracts . To Parent’s Knowledge, none of the Company contracts or agreements referred to in the foregoing clause (iii) would preclude the Company, the Surviving Corporation or Parent after Closing from engaging in any of its Subsidiaries current activities, or presently planned material activities of which Parent is aware. All Parent Material Contracts are valid and in full force and effect except to the extent they have previously expired in accordance with their terms, and neither Parent nor any Affiliate Parent Subsidiary has violated any provision of, or committed or failed to perform any act which, with or without notice, lapse or time, or both, could reasonably be expected to constitute a material default under the provisions of any such Parent Material Contract. To the Company (other than Knowledge of Parent, no counterparty to any such Parent Material Contract has violated any provision of, or committed or failed to perform any act which, with our without notice, lapse of its Subsidiaries);
(C) all joint venturetime, partnership or both, could reasonably be expected to constitute a material default or other similar agreements to which breach under the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries provisions of any debt obligations such Parent Material Contract. Copies of any other person (other than all the Contracts set forth in the Parent Disclosure Letter have heretofore been made available to Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreementand such copies are accurate and complete.
Appears in 2 contracts
Sources: Merger Agreement (Integrated Circuit Systems Inc), Merger Agreement (Integrated Device Technology Inc)
Contracts. (a) Except as filed as exhibits to the Company SEC Documents filed or furnished (and publicly available) prior to the date hereof, or as disclosed in Section 3.13 of the Company Disclosure Schedule, there is no Company Agreement which, as of the date hereof, (i) Neither is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) that involves aggregate expenditures in excess of $100 million or (iii) that contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company nor or any Company Subsidiary, or which materially restricts the conduct of its Subsidiaries any line of business by the Company or any Company Subsidiary or any geographic area in which the Company or any Company Subsidiary conducts business, in each case in any material respect. Each contract of the type described in Section 3.13, whether or not set forth in Section 3.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract.” Each Company Material Contract is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, each other party thereto, as applicable, and in full force and effect, and the Company and each Company Subsidiary has performed in all material respects all obligations required to be performed by it under each Company Agreement and, to the Company’s knowledge, each other party to each Company Material Contract has performed in all material respects all obligations required to be performed by it under such Company Material Contract, except, in each case, as do not have and would not be reasonably expected to have, individually or in the aggregate, a Company Material Adverse Effect. None of the Company or any Company Subsidiary knows of, or has received notice of, any violation or breach of or in default under (nor does there exist or any condition that upon which with the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party or by which it or any of its properties or assets is bound, Company Agreement except for violations, breaches violations or defaults that do not have and would not be reasonably expected to have, individually or in the aggregate have not had and would not reasonably be expected to have aggregate, a Company Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the CompanyEffect.
(iib) Except The Company has delivered to Parent 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 in unredacted form as exhibits to the Company Filed SEC Documents, Documents and the Company Material Contracts or other Company Agreements required to be disclosed in Section 3.01(j)(ii) 3.13 of the Company Disclosure Schedule sets forth a filed as exhibits to the Company SEC Documents as true and complete list as copies of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreementsuch contracts.
Appears in 2 contracts
Sources: Merger Agreement (Koch Industries Inc), Merger Agreement (Georgia Pacific Corp)
Contracts. (i) Neither Schedule 2.1(v)(i) and Schedule 2.1(g) of the Company nor CPA14 Disclosure Letter list all CPA14 Material Contracts to which CPA14 or any CPA14 Subsidiary is a party that are in effect as of its Subsidiaries is the date of this Agreement. Except as set forth in violation or breach Schedule 2.1(v)(i) of the CPA14 Disclosure Letter or in default under the CPA14 SEC Documents, each CPA14 Material Contract is valid, binding and enforceable in accordance with its terms and in full force and effect with respect to CPA14 and the CPA14 Subsidiaries, as applicable, and, to the Knowledge of CPA14, each of the other parties thereto, except, in each case, where such failure to be so valid, binding and enforceable and in full force and effect would not, individually or in the aggregate, reasonably be expected to have a CPA14 Material Adverse Effect, and there are no defaults (nor does there exist any condition that which upon the passage of time or the giving of notice or both would cause such a violation or breach of or default underdefault) under any CPA14 Material Contract to which it is a party or by which it CPA14 or any CPA14 Subsidiary, or, to the Knowledge of its properties or assets is boundCPA14, any of the other parties thereto, except for violations, breaches or those defaults that would not, individually or in the aggregate have not had and would not aggregate, reasonably be expected to have a CPA14 Material Adverse Effect Effect. For purposes of this Agreement, “CPA14 Material Contracts” shall mean (A) any partnership, limited liability company or joint venture agreement between CPA14 or any CPA14 Subsidiary, on the Company. The Company or one of its Subsidiaries has good hand, and marketable title to the Company's manufacturing facility and executive and general offices located in Montpeliera third party, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
other hand, (iiB) Except for Contracts the mortgage loans set forth on Schedule 2.1(g) of the CPA14 Disclosure Letter, (C) each material commitment, contractual obligation, borrowing, capital expenditure or transaction entered into by CPA14 or any CPA14 Subsidiary which may result in total payments by or liability of CPA14 or any CPA14 Subsidiary in excess of $1,000,000, (D) any other agreements filed in unredacted form or required to be filed as exhibits to the Company Filed CPA14 SEC Documents, Section 3.01(j)(iiDocuments pursuant to Item 601(b)(10) of the Company Disclosure Schedule sets forth a true and complete list as Regulation S-K of Title 17, Part 229 of the date Code of this AgreementFederal Regulations, (E) any interest rate cap, interest rate collar, interest rate swap, currency hedging transaction and the Company has delivered any other agreement relating to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) all Contracts a similar transaction to which the Company CPA14 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries CPA14 Subsidiary is a party or an obligor with respect thereto, (F) the CPA14 Leases with respect to the five largest CPA14 Tenants measured by lease revenue, and (G) any agreement, commitment, instrument or obligation of a type described in Sections 2.1(v)(ii) through 2.1(v)(iv); in each case including all amendments amendments, modifications and modifications thereto); and
(D) supplements to such CPA14 Material Contracts and all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant side letters to which any indebtedness of the Company CPA14 or any of its Subsidiaries CPA14 Subsidiary is outstanding or may be incurred and all guarantees of or by a party affecting the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreementparty thereunder.
Appears in 2 contracts
Sources: Merger Agreement (Corporate Property Associates 14 Inc), Agreement and Plan of Merger (Carey W P & Co LLC)
Contracts. (a) Except for this Agreement, neither Parent nor any Parent Subsidiary is a party to any Contract required to be filed by Parent as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act (each, a “Filed Parent Contract”) that has not been so filed.
(b) Other than Filed Parent Contracts, Section 4.11(b) of the Parent Disclosure Letter sets forth, as of the date of this Agreement, a true and complete list, and Parent has made available to Company true and complete copies, of the following Contracts (and Filed Parent Contracts without any redactions) to which Parent or any Parent Subsidiary is a party or that bind assets of Parent or any Parent Subsidiary:
(i) Neither each Contract that obligates the Parent or any Subsidiary of the Parent to make any capital investment or capital expenditure in excess of $500,000;
(ii) each Contract to which the Parent or any of the Parent Subsidiaries is a party that:
(A) materially restricts the ability of the Parent or the Parent Subsidiaries to compete in any business or with any Person in any geographical area or would, to the Knowledge of Parent, restrict in any material respect the ability of Company nor or any of its Subsidiaries is to compete in violation any business or breach of with any Person in any geographical area after the Effective Time,
(B) requires the Parent or in default under any Parent Subsidiary to conduct any business on a “most favored nations” basis with any third party,
(nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default underC) any Contract “take or pay,” minimum purchase or minimum volume commitment provisions,
(D) provides for “exclusivity” or any similar requirement in favor of any third party, or
(E) contains any other provisions materially restricting or purporting to which it is a party or by which it materially restrict the ability of the Parent or any of its properties Subsidiaries to sell, market, distribute, promote, manufacture, develop, commercialize, or test or research any product or product candidate, directly or indirectly through third parties, or that would so limit or purport to limit Company or any of its Affiliates after the Effective Time;
(iii) each Contract evidencing Indebtedness of the Parent or any of the Parent Subsidiaries, other than any such agreement between or among the Parent and the wholly owned Parent Subsidiaries and other than accounts payable in the ordinary course of business;
(iv) any Contract involving the settlement or compromise of any Legal Proceeding or threatened Legal Proceeding (or series of related Legal Proceedings) which (A) involves either payments by the Parent or any of its Subsidiaries after the date hereof in excess of $500,000, or (B) imposes any materially burdensome monitoring or reporting obligations to any other Person outside the ordinary course of business or any other material restrictions or liabilities on the Parent or any Parent Subsidiary (or, following the Closing, on Company or any Company Subsidiary);
(v) each Parent Lease;
(vi) each partnership, joint venture or similar Contract to which the Parent or any of the Parent Subsidiaries is a party;
(vii) each Contract with any Governmental Entity;
(viii) any Contract pursuant to which Parent or any of the Parent Subsidiaries has continuing guarantee, “earn-out” or other contingent payment obligations, in each case that would reasonably be expected to result in payments in excess of $3,000,000;
(ix) any Contract that is a license agreement (including all regional licensing transactions), covenant not to sue agreement or co-existence agreement or similar agreement, each of the foregoing that is material to the business of the Parent and its Subsidiaries, taken as a whole, to which the Parent or any of the Parent Subsidiaries is a party and licenses in Intellectual Property Rights owned by a third party or licenses out any Parent IP or agrees not to assert or enforce Parent Owned IP, including each Parent In-bound License (but excluding any Standard Contract), and each Parent Out-bound License (but excluding any Standard Contract);
(x) each Contract (A) pursuant to which Parent or any of its Subsidiaries may be required after the date of this Agreement to pay milestones, royalties or other contingent payments based on the results or outcome of any research, testing or development; regulatory filings or approval; sale; distribution; commercial manufacture or other similar occurrences, developments, activities or events, or (B) under which Parent or any of its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license, or any other similar rights with respect to any product or product candidate of Parent or any Intellectual Property Rights owned or purported to be owned by or licensed to Parent or any of its Subsidiaries (or, following the Closing, with respect to any product or product candidate of Company or any Intellectual Property Rights of Company or any of its Subsidiaries); and
(xi) each Contract relating to the disposition or acquisition by the Parent or any of the Parent Subsidiaries of any material business or any material amount of assets (excluding dispositions or acquisitions which were consummated prior to the date of this Agreement and with respect to which there is boundno ongoing material liability or material obligation of the Parent or any Parent Subsidiaries). Each Contract of the type described in this Section 4.11(b) and each Filed Parent Contract is referred to herein as a “Parent Material Contract”.
(c) Except for matters which, except for violations, breaches or defaults that individually or in the aggregate aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect Effect, each Parent Material Contract (including, for purposes of Section 6.3(a), any Contract entered into after the date of this Agreement that would have been a Parent Material Contract if such Contract existed on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement) (i) is a valid, binding and legally enforceable obligation of the Company has delivered Parent or one of the Parent Subsidiaries, as the case may be, and, to the Knowledge of Parent, of the other parties thereto, except, in each case, as enforcement may be limited by the Bankruptcy and Equity Exception and (ii) is in full force and effect. None of Parent prior to or any of the Parent Subsidiaries is (with or without notice or lapse of time, or both) in material breach or default under any such Parent Material Contract (including, for purposes of Section 6.3(a), any Contract entered into after the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) all Contracts to which the Company or any of its Subsidiaries is that would have been a party, or that purports to be binding upon the Company, any of its Subsidiaries or any of its Affiliates, that contain a covenant restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of Material Contract if such Contract existed on the date of this Agreement) and, to the Knowledge of Parent, no other party to any such Parent Material Contract is (with or without notice or lapse of time, or both) in material breach or default thereunder.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (ACELYRIN, Inc.), Merger Agreement (Alumis Inc.)
Contracts. (ia) Neither As of the date hereof, neither the Company nor any of its Subsidiaries is in violation a party to, and none of their respective properties or breach other assets is subject to, any Contract that is of a nature required to be filed as an exhibit to a report or in default filing under (nor does there exist any condition that upon the passage of time Securities Act or the giving of notice or both would cause such a violation or breach of or default under) Exchange Act, other than any Contract to which it that is a party or by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title filed as an exhibit to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the CompanyFiled Company SEC Documents.
(iib) Except for Contracts filed in unredacted form as exhibits to the Filed Company Filed SEC Documents, Section 3.01(j)(ii3.10(b) of the Company Disclosure Schedule Letter sets forth a true correct and complete list as of the date of this Agreement, and the Company has delivered made available to Parent prior to the date of this Agreement true, correct and complete and correct copies (including all amendments amendments, modifications, extensions, renewals, guaranties or other Contracts with respect thereto, but excluding certain names, terms and modifications thereto) conditions that have been redacted in compliance with applicable Laws governing the sharing of information or otherwise), of:
(Ai) all Contracts (other than Contracts of the category required to be disclosed in clause (xiv), clause (xv) or clause (xvi) of this Section 3.10(b), regardless of value) of the Company or any of its Subsidiaries having an aggregate value per Contract, or involving payments by or to the Company or any of its Subsidiaries, of more than $750,000 on an annual basis;
(ii) all Contracts to which the Company or any of its Subsidiaries is a party, or that purports to be binding upon by which the Company, any of its Subsidiaries or any of its AffiliatesAffiliates is bound, that contain a covenant restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could would restrict the ability of Parent or any of its Subsidiaries, including the Company Surviving Entity and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(Biii) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(Civ) any (A) Contract to which the Company or any of its Subsidiaries is a party granting any license to Intellectual Property, and (B) other license (other than real estate) having an aggregate value per license, or involving payments by the Company or any of its Subsidiaries, of more than $750,000 on an annual basis;
(v) all confidentiality agreements (other than in the ordinary course of business), 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;
(vi) any Contract having an aggregate value per Contract, or involving payments by or to the Company or any of its Subsidiaries, of more than $750,000 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;
(vii) all joint venture, profit sharing, partnership or other similar agreements involving co-investment with a third party to which the Company or any of its Subsidiaries is a party (including all amendments and modifications theretoother than any such profit sharing or similar agreements entered into in the ordinary course of business); and;
(Dviii) any Contract or order with or from a Governmental Authority (other than ordinary course Contracts with Governmental Authorities as a customer or as a Provider) which imposes any material obligation or restriction on the Company or its Subsidiaries;
(ix) all loan agreementsleases, credit agreementssubleases, notes, debentures, bonds, mortgages, indentures and licenses or other Contracts pursuant to which the Company or any of its Subsidiaries use or hold any material property involving payments by or to the Company or any of its Subsidiaries of more than $750,000 on an annual basis;
(collectivelyx) all material outsourcing Contracts;
(xi) all Contracts with investment bankers, "debt obligations"financial advisors, attorneys, accountants or other advisors retained by the Company or any of its Subsidiaries involving payments to be made by or to the Company or any of its Subsidiaries after the date of this Agreement of more than $750,000 on an annual basis;
(xii) all Contracts providing for the indemnification by the Company or any of its Subsidiaries of any person, except for any such Contract that is not material to the Company or any of its Subsidiaries;
(xiii) all Contracts pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations indebtedness of any other person (other than the Company or any of its Subsidiaries), including ) (except for such indebtedness or guarantees the respective aggregate principal amounts outstanding as amount of which does not exceed $750,000 on an annual basis and excluding trade payables arising in the ordinary course of business);
(i) the largest Contracts of the date Company and its Subsidiaries with facilities and capitated Providers (including hospitals and medical groups) in the states of this AgreementCalifornia, Texas, Arizona and Colorado (measured in terms of total projected payments by the Company and its Subsidiaries during the year ending December 31, 2005) that, in the aggregate, represent at least 60% of the total projected 2005 payments by the Company and its Subsidiaries to such Providers in each of such states and (ii) the largest Contracts of the Company and its Subsidiaries with such Providers in the states of Oklahoma, Oregon, Nevada and Washington (measured in terms of total projected payments by the Company and its Subsidiaries during the year ending December 31, 2005) that, in the aggregate, represent at least 50% of the total projected 2005 payments by the Company and its Subsidiaries to such Providers in each of such states (collectively, the "Largest Provider Contracts");
(xv) Contracts of the Company and its Subsidiaries with the 20 largest customers in California and the 10 largest customers in the Other Core States in the aggregate (in each case measured in terms of total projected payments to the Company and its Subsidiaries during the year ending December 31, 2005) (the "Largest Customer Contracts");
(xvi) Contracts of the Company and its Subsidiaries with the 20 largest brokers, the 10 largest general agents and the largest broker for American Medical Security Group, Inc. (measured in terms of total projected payments by the Company and its Subsidiaries during the year ending December 31, 2005) (the "Largest Broker Contracts");
(xvii) any Contract with respect to any risk sharing or risk transfer arrangement or that provides for a retroactive premium or similar adjustment or withholding arrangement, pursuant to the terms of which an adjustment, premium, payment or arrangement is reasonably expected to result therefrom in an amount of $750,000 or more;
(xviii) any Contract or policy for reinsurance with third parties;
(xix) any demonstration or pilot or other material Contract with the Centers for Medicare and Medicaid Services ("CMS") or any successor thereto; and
(xx) any Contract with the Office of Personnel Management, or any successor thereto.
(i) None of the Company or any of its Subsidiaries (x) is, or has received written notice or has Knowledge that any other party to any of its Contracts is, in violation or breach of or default (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 (ii) to the Knowledge of the Company, 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 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 aggregate have not had and would not reasonably be expected to have a Company Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Unitedhealth Group Inc), Merger Agreement (Pacificare Health Systems Inc /De/)
Contracts. Schedule 6.05 of the Elan Disclosure Schedule sets forth a complete and correct list of: (ia) Neither each EPI Contract that relates to the Company nor any research, development, exploitation, licensing, use, importation, promotion, marketing, sale or distribution of its Subsidiaries is the Products and provides for aggregate annual payments, or has a value in violation excess, of $25,000; Certain portions of this Exhibit have been omitted pursuant to a request for confidentiality. Such omitted portions, which are marked with brackets [ ] and an asterisk*, have been separately filed with the Commission. and (b) each other EPI Contract that, if such Contract were to be terminated or breach of otherwise no longer in full force and effect, would have or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party or by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the CompanyEffect. The Company or one of its Subsidiaries EPI has good and marketable title delivered to the Company's manufacturing facility Acquiror complete and executive and general offices located in Montpelier, Ohio, free and clear correct copies of all Liens except for Lienssuch EPI Contracts and all Assumed Contracts; including all amendments, defects in titleexhibits, easements, restrictive covenants appendices and similar encumbrances that individually or in the aggregate have not had and annexes thereto. Except as would not reasonably be expected to have a Material Adverse Effect on Effect, (a) each of the Company.
Assumed Contracts is in full force and effect and constitutes a legal, valid and binding agreement of EPI or its Affiliate, as applicable, and is enforceable in accordance with its terms by EPI or its Affiliate, as applicable, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting generally the enforcement of creditors’ rights and (ii) Except for Contracts filed the availability of equitable remedies (whether in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreementproceeding in equity or at law), and the Company has delivered to Parent prior to the date (b) EPI-and its Affiliates have performed all of this Agreement truetheir obligations under each Assumed Contract, complete and correct copies (including all amendments and modifications thereto) of:
(A) 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 neither EPI nor any of its Affiliates, that contain a covenant restricting nor, to the ability Knowledge of the Company EPI, any third party to any Assumed Contract, has violated or breached, or declared or committed any Default under, any Assumed Contract. Neither EPI nor any of its Subsidiaries (Affiliates have received any written notice or, to the Knowledge of EPI, any other communication regarding any actual, alleged, possible or whichpotential violation or breach of, following or default under, any Assumed Contract. EPI has delivered to the consummation Acquiror complete and correct copies of all Multi-Product Contracts, including all amendments, exhibits, appendices and annexes thereto; provided, that such copies may have been redacted to prevent disclosure of information not related to any of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this AgreementProducts.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Acorda Therapeutics Inc), Asset Purchase Agreement (Acorda Therapeutics Inc)
Contracts. (i) Neither the Company nor any of its Subsidiaries is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party or by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(iia) Except for this Agreement and except for Contracts filed in unredacted form as exhibits to the Company Filed SEC DocumentsReports, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to none of Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) all Contracts to which the Company or any of its Subsidiaries is not a party, party to or bound by any Contract: (i) that purports would be required to be filed by BioLite as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act; (ii) contains covenants binding upon the Company, Parent or any of its Subsidiaries or any of its Affiliates, that contain a covenant restricting restrict the ability of the Company Parent or any of its Subsidiaries (or which, following the consummation of the MergerMergers, could would materially restrict the ability of Parent or any of its Subsidiaries, including the Company and its SubsidiariesParent Affiliate) to compete in any business or with geographic area; or (iii) involving the payment or receipt of royalties or other amounts of more than $10,000 related to any person product of Parent or any Parent Affiliate , or (iv) that would prevent, materially delay or materially impede Parent’s ability to consummate the Mergers or the other transactions contemplated by this Agreement. Each such Contract described in clauses (i) through (iii) as well as each Contract listed in Section 5.17(a) of the Parent Schedule of Exceptions is referred to herein as a “Parent Material Contract”.
(b) Each of the Parent Material Contracts is valid and binding on Parent or the applicable Subsidiary of Parent, as the case may be, and, to the Knowledge of Parent, each other party thereto and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect as would not, or would not reasonably be expected to, individually or in the aggregate, have a Parent Material Adverse Effect. There is no default under any geographic area;
(B) all Contracts of the Company Parent Material Contract by Parent or any of its Subsidiaries and no event has occurred that with any Affiliate the lapse of time or the Company (other than any giving of its Subsidiaries);
(C) all joint venture, partnership notice or other similar agreements to which the Company or any of its Subsidiaries is both would constitute a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or default thereunder by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company Parent or any of its Subsidiaries), including in each case except as would not, or would not reasonably be expected to, individually or in the respective aggregate principal amounts outstanding as of the date of this Agreementaggregate, have a Parent Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (American BriVision (Holding) Corp), Agreement and Plan of Merger (American BriVision (Holding) Corp)
Contracts. (iExcept for Contracts filed as exhibits to UroCor's most recent annual report on Form 10-K or the most recent report on Form 10-Q filed with SEC or as set forth in Section 3.2(o) Neither of the Company nor UroCor Disclosure Schedule, as of the date of this Agreement, none of UroCor or any of its Subsidiaries is a party to or bound by, and none of their properties or assets are bound by or subject to, any written or oral:
(i) Contract not made in violation or breach the ordinary course of or in default under business;
(nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default underii) any Contract pursuant to which it is a party or by which it UroCor or any of its properties Subsidiaries has agreed not to compete with any Person or to engage in any activity or business, or pursuant to which any benefit is required to be given or lost as a result of so competing or engaging;
(iii) Contract pursuant to which UroCor or any of its Subsidiaries is restricted in any material respect in the development, marketing or distribution of their respective products or services;
(iv) Contract with (A) any affiliate of UroCor or any of its Subsidiaries or (B) any current or former director or officer of UroCor or any of its Subsidiaries or of any affiliate of UroCor or any of its Subsidiaries or (C) any affiliate of any such Person (other than (w) contracts on arm's-length terms with companies whose common stock is publicly traded, (x) offer letters providing solely for "at will" employment, (y) invention assignment and confidentiality agreements relating to the assignment of inventions to UroCor or any of its Subsidiaries not involving the payment of money and (z) UroCor Benefit Plans referred to in Section 3.2(r));
(v) license or franchise granted by UroCor or any of its Subsidiaries pursuant to which UroCor or any of its Subsidiaries has agreed to refrain from granting license or franchise rights to any other Person;
(vi) Contract under which UroCor or any of its Subsidiaries has incurred any indebtedness that is currently owing or given any guarantee in respect of indebtedness, in each case having an aggregate principal amount in excess of $100,000, or granted any pledge, mortgage or other security interest in any property or assets of UroCor or any of its Subsidiaries;
(vii) Contract that is boundmaterial to the conduct of the business of UroCor and its Subsidiaries that requires consent, approval or waiver of or notice to a third party in the event of or with respect to the Merger or any of the other transactions contemplated by this Agreement, including in order to avoid termination of or a loss of material benefit under any such Contract;
(viii) Contract or other agreement, whether written or oral, that contains any guarantees as to UroCor or any of its Subsidiaries' future revenues;
(ix) Contract granting a third party any license to Intellectual Property Rights that is not limited to the internal use of such third party;
(x) Contract in respect of any joint venture, partnership, business alliance or similar arrangement between UroCor or any of its Subsidiaries and any third party;
(xi) except for the Confidentiality Agreement, Contract providing for a "standstill" or for confidential treatment by UroCor or any of its Subsidiaries of third party information other than non-disclosure agreements and provisions entered into by UroCor in the ordinary course of business consistent with past practice;
(xii) Contract granting the other party to such Contract or a third party "most favored nation" status that, following the Merger, would in any way apply to Dianon or any of its Subsidiaries (other than UroCor and its Subsidiaries and their products or services); or
(xiii) Contract which (i) has aggregate future sums due from UroCor or any of its Subsidiaries in excess of $100,000 and is not terminable by UroCor or any such subsidiary for a cost of less than $100,000 or (ii) is otherwise material to the business of UroCor and its Subsidiaries, taken as a whole, as presently conducted or as proposed to be conducted. Each Contract of UroCor and its Subsidiaries is in full force and effect and is a legal, valid and binding agreement of UroCor or such subsidiary and, to the knowledge of UroCor or such subsidiary, of each other party thereto, enforceable against UroCor or any of its Subsidiaries, as the case may be, and, to the knowledge of UroCor, against the other party or parties thereto, in each case, in accordance with its terms, except for violations, breaches such failures to be in full force and effect or defaults enforceable that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the CompanyUroCor. The Company or one Each of UroCor and its Subsidiaries has good performed or is performing all obligations required to be performed by it under its Contracts and marketable title is not (with or without notice or lapse of time or both) in breach or default in any respect thereunder, and, to the Company's manufacturing facility and executive and general offices located knowledge of UroCor or such subsidiary, no other party to any of its Contracts is (with or without notice or lapse of time or both) in Montpelierbreach or default in any respect thereunder except, Ohioin each case, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances such breaches that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the CompanyUroCor.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Dianon Systems Inc), Merger Agreement (Urocor Inc)
Contracts. (ia) Neither As of the Company nor any of its Subsidiaries date hereof, TMOL is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is not a party or by which it or to, nor are any of its properties or assets is boundbound by, except for violationsany currently binding (i) contracts, breaches licenses or defaults that individually agreements, with respect to any tangible or intangible property with a value or cost in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one excess of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier$50,000, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except any employment or consulting agreement or contract that requires payments in excess of $50,000 per year (other than offer letters providing only for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents"at will" employment), Section 3.01(j)(ii(iii) any agreement or plan, any of the Company Disclosure Schedule sets forth a true and complete list as benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the date transactions contemplated by this Agreement or the TMOL Business Agreement or the value of any of
(b) For purposes of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement truea "VENUE AGREEMENT" means a contract, complete and correct copies (including all amendments and modifications thereto) of:
(A) all Contracts agreement or arrangement to which the Company any of USA, TMOL or any affiliate of its Subsidiaries is a party, or that purports to be binding upon the Company, any either of its Subsidiaries or any of its Affiliates, that contain a covenant restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries them is a party (including each, a "DISTRIBUTOR"), relating to any rights any such Distributor has to sell, enable the sale of, or distribute tickets for live events or performances and impose any fees or charges (collectively "FEES," which shall include, without limitation, convenience charges, handling charges, inside charges and credit card purchase charges) in connection therewith to the counterparty and/or ticket purchaser ("TICKET DISTRIBUTION"). Under each Venue Agreement, the Distributor that is a party thereto has all amendments rights necessary to permit and modifications thereto); and
enable it to engage in, and derive revenue from, Ticket Distribution on-line over the Internet for the events and performances that are the subject of such Venue Agreement (D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures individually and other Contracts (collectively, the "debt obligationsONLINE REVENUE RIGHTS") pursuant to which any indebtedness ). The terms of the Company Online Revenue Rights in each Venue Agreement (including without limitation the amount of all Fees) are no less favorable to the Distributor than the terms of the Venue Agreements pertaining to Ticket Distribution conducted by telephone. Without limiting the foregoing, under each Venue Agreement, the Distributor that is a party The line items entitled "Convenience Charges" and "S&H Revenue-Tickets" included in the TMOL statement of operations that is included in the TMOL Pro Forma Financial Statements are comprised only of revenues recognized by Distributors from Ticket Distribution on-line over the Internet under the Venue Agreements; and if such revenue were to be generated by a Distributor following the Effective time, then, under the TMOL Business Agreement, all such revenue would be treated as revenue of TMOL. The line items entitled "Convenience Charges" and "S&H Revenue-Tickets" included in the statement of operations that is included in the TMOL Financial Statements are comprised of all "Inside Charges", "Royalties", "License Fees" and all other fees and charges, however denominated, received by Distributor in respect of Ticket Distribution online. With respect to a substantial majority of the Venue Agreements for major clients, there is no third party that has any right to engage in Ticket Distribution by telephone or on-line over the Internet. Neither USA, Ticket nor any other Distributor has transferred or permitted the transfer of any rights to any person or entity that is not majority owned and controlled by Ticket to engage in, or derive revenue from, Ticket Distribution over the Internet using the "Ticketmaster" name (or any of its Subsidiaries derivation thereof) or Ticketmaster marks, and no existing contract, agreement or arrangement is outstanding in, or may be incurred in the future take, effect that would permit any person or entity that is not majority owned and all guarantees of controlled by Ticket to use such names or marks for such purposes. Each Distributor is majority owned and controlled by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this AgreementTicket.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Usa Networks Inc)
Contracts. (ia) Neither Except as set forth in Section 4.13(a) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries is a party to or bound by, as of the date hereof, any Company Contract (as defined in violation or breach of or in default under (nor does there exist any condition Section 4.13(c)) that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party "material contract" (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) (each an "SEC Material Company Contract").
(b) Prior to the date hereof, the Company has made available to Parent or Parent's Representatives true and correct copies of forms of (i) a sampling of relevant Health Plan Contracts (and related application and enrollment forms), (ii) the top twenty (20) Provider Contracts ranked by which it or number of Health Plan Members utilizing the PPO and (iii) a sampling of relevant ASO Contracts used in the business of the Company and/or its Subsidiaries as of the date hereof. Except as set forth in Section 4.13(b) of the Company Disclosure Letter, if required, each such form and any rates applicable thereto have been appropriately and timely filed and, if required, approved by applicable Governmental Authorities and otherwise conform, in all material respects, to the requirements of its properties or assets is boundapplicable Laws, except for violationsas would not, breaches or defaults that individually or in the aggregate have not had and would not aggregate, reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected likely to have a Material Adverse Effect on the Company.
(iic) Except for Contracts filed as set forth in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii4.13(c) of the Company Disclosure Schedule sets forth Letter, or as would not, individually or in the aggregate, reasonably be likely to have a true Material Adverse Effect on the Company, each Company Contract is a legal, valid and complete list as binding obligation of the date Company or a Company Subsidiary party thereto and, to the knowledge of the Company, each other party thereto, and is in full force and effect in accordance with its terms except to the extent that such enforcement may be subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, affecting creditors' rights generally and (ii) general principles of equity (regardless of whether enforcement is considered in a proceeding at law or in equity). For purposes of this Agreement, the term "Company Contracts" means, collectively, all Material Company Contracts, Provider Contracts and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) all other 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications theretowithout regard to any dollar or materiality thresholds); provided that "Company Contracts" shall not include any Client Contract. The Company and each of its Subsidiaries have performed all obligations required to be performed by them under each Company Contract and
(D) , to the knowledge of the Company, each other party to each Company Contract has performed all loan agreementsobligations required to be performed by it under such Company Contract, credit agreementsexcept, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness in each case of the Company or any of its Subsidiaries is outstanding or may each such other party, as would not, individually or in the aggregate, reasonably be incurred and all guarantees of or by likely to have a Material Adverse Effect on the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this AgreementCompany.
Appears in 1 contract
Sources: Merger Agreement (American Medical Security Group Inc)
Contracts. (i) Neither the Company nor any of its Subsidiaries is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party or by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii3.01(i) of the Company Disclosure Schedule Letter sets forth (with specific reference to the subsection of this Section 3.01(i) to which such Contract relates) a true complete and complete list correct list, as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(i) (A) all Contracts each Contract that would be required to which be filed, but has not been filed, by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or (B) any Contract with any current or former employee, director or officer of the Company or any of its Subsidiaries is that (1) contains a partynon-competition, employee non-solicitation, or that purports customer non-solicitation or non-interference provision, other than where the Company or its Subsidiaries are the beneficiary of such restrictive covenant; (2) relate to employees in the United States and cannot be binding upon terminated by the Company, Company or any of its Subsidiaries “at will”; (3) relate to employees outside the United States and has employment termination provisions that are materially more restrictive on the Company than Applicable Law except where such provisions are consistent with practice in the local employment market for individuals of comparable role and responsibilities or any (4) contains a retention, change in control, change of its Affiliatescontrol, transaction bonus, severance, golden parachute or similar provision;
(ii) each Contract that contain a covenant restricting restricts the ability of the Company or any of its Subsidiaries (to engage or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business of the Company or to compete with any person or in any geographic geographical area;
(B) all Contracts of , or that by its terms restricts, the persons to whom the Company or any of its Subsidiaries with any Affiliate may sell products or deliver services or that otherwise prohibits or limits the right of the Company (other than or its Subsidiaries to sell, distribute or manufacture any of its Subsidiaries)Company Products or to purchase or otherwise obtain any software, components, parts or subassemblies;
(Ciii) all joint ventureeach loan and credit agreement, partnership or mortgage, note, debenture, bond, indenture and other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") Contract pursuant to which any indebtedness for borrowed money of the Company or any of its Subsidiaries is outstanding or may be incurred, and each Contract or instrument pursuant to which indebtedness for borrowed money may be incurred or is guaranteed by the Company or any of its Subsidiaries, other than any such Contract solely between or among any of the Company and all guarantees any of its Subsidiaries;
(iv) each Contract under which the Company or any of its Subsidiaries paid more than $750,000 during the twelve (12) month period ended March 31, 2015 and, to the Company’s Knowledge, each Contract under which the Company would expect to make future payments exceeding $1,000,000 in the aggregate;
(v) [INTENTIONALLY OMITTED]
(vi) each Contract for the acquisition or disposition by the Company or any of its Subsidiaries of properties or assets for, in each case, aggregate consideration of more than $500,000, except for acquisitions of supplies and acquisitions and dispositions of inventory in the ordinary course of business;
(vii) each Contract that provides for interest rate caps, collars or swaps, currency hedging or any debt obligations other similar agreement to which the Company or any of its Subsidiaries is a party;
(viii) each Contract that relates to the voting or registration for sale under the Securities Act of any other person (securities of the Company, other than the Voting Agreements;
(ix) each Contract that provides for the Company or any of its Subsidiaries to indemnify or hold harmless any employee, director or officer of the Company or any of its Subsidiaries), including except for form indemnification agreements entered into by the respective aggregate principal amounts outstanding as Company’s directors and officers, which form has been provided to Parent;
(x) each Contract providing for the formation, creation, operation or management, with any third party, of any joint venture, strategic alliance, or partnership, other than reseller agreements entered into in the ordinary course of business pursuant to the Company’s reseller program, and other than the “Blue Orbit” marketing program;
(xi) each Contract that grants any put option, call option, right of first refusal or right of first offer or similar right with respect to any material assets or businesses of the date Company and its Subsidiaries;
(xii) each Contract that contains (A) a “most favored nation” or (B) other term providing preferential pricing or treatment to a third party;
(xiii) each Contract with or binding upon the Company or any of this Agreementits 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;
(xiv) each Contract that represents any commitment or agreement to enter into any of the foregoing;
(xv) each Contract between the Company or any of its Subsidiaries and any of the top twenty (20) third-party customers (as measured by revenue) of the Company and the Company’s Subsidiaries, taken as a whole, for the twelve-month period ended March 31, 2015 (“Major Customers”); and
(xvi) each Contract between the Company or any of its Subsidiaries and any of the top twenty (20) third-party suppliers (as measured by amounts paid to such suppliers) of the Company and the Company’s Subsidiaries, taken as a whole, for the twelve-month period ended March 31, 2015 (“Major Suppliers”). Each such Contract described in clauses (i) through (xvi) above, together with any other Contract (A) that was filed by the Company in its Annual Report on Form 10-K on March 27, 2015, or that would be required to be filed by the Company in its next Quarterly Report on Form 10-Q, as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K and (B) any Real Property Lease, is referred to herein as a “Specified Contract”. The Company has heretofore delivered or made available to Parent correct and complete copies of each Specified Contract, together with any and all amendments and supplements thereto and any “side letter” or similar documentation relating thereto. Each of the Specified Contracts is valid and binding on the Company or the Subsidiary of the Company party thereto and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole. There is no default under any Specified Contract by the Company or any of its Subsidiaries or, to the Knowledge of the Company, by 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 or, to the Knowledge of the Company, by any other party thereto, in each case except for such defaults and events that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole. Neither the Company nor any of its Subsidiaries has received any written notice of termination or cancellation under any Specified Contract.
Appears in 1 contract
Sources: Merger Agreement (Ciena Corp)
Contracts. (ia) Neither the Company nor any of its Subsidiaries is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party or by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii4.15(a) of the Company Disclosure Schedule sets forth a true correct and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) all Contracts to which the Company or any of its Subsidiaries is a partyparty as of the date of this Agreement (excluding (i) Insurance Contracts, agency agreements, adjuster contracts, attorney agreements, Reinsurance Agreements or that purports to be binding upon similar instruments written, assumed or reinsured by the CompanyInsurance Companies in the Ordinary Course of Business and (ii) “shrink wrap” or “click through” licenses for commercially available, off-the-shelf Software covered by the exclusion in Section 4.14(b)) or by which any of its Subsidiaries or any their assets is bound as of its Affiliates, the date of this Agreement that contain a covenant restricting the ability obligations of the Company or any of its Subsidiaries (or whichin excess of $100,000, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including that will result in receipts to the Company and its Subsidiaries) to compete Subsidiaries in excess of $100,000 in any business twelve (12) month period, or with any person or in any geographic area;
(B) all Contracts of that are otherwise material to the Company or any of its Subsidiaries (together with any Affiliate the Contracts set forth in Section 4.15(b) of the Company Disclosure Schedule, the “Material Contracts”). As of the date hereof, none of the Company or its Subsidiaries has received notice of a cancellation of or an intent to cancel any Material Contract. True and complete copies of all of the Material Contracts (other than including all amendments thereto) as of the date hereof have been made available to Parent and with respect to any Material Contracts that are not written, the Company has made available to Parent written summaries of its Subsidiaries);the material terms thereof.
(Cb) all joint ventureExcept for Contracts listed in Section 4.15(b) of the Company Disclosure Schedule, partnership or other similar agreements to which none of the Company or any of its Subsidiaries is a party to any Contract (including all amendments and modifications thereto); and
(Di) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness containing covenants limiting the freedom of the Company or any of its Subsidiaries is outstanding to engage in any line of business in any geographic area or may be incurred and all guarantees to compete with any Person, (ii) relating to the employment of or by employees of the Company or any of its Subsidiaries (excluding employee offer letters and Benefit Plans), (iii) forming joint ventures or partnerships, (iv) under which the Company or any of any debt its Subsidiaries has guaranteed the obligations of any other person Person (other than excluding Insurance Policies, agency agreements, adjuster contracts, Reinsurance Agreements or similar instruments written, assumed or reinsured by the Insurance Companies in the Ordinary Course of Business in a manner consistent with past practice), which guarantees may exceed $50,000, (v) with any Governmental Entity materially affecting the business of the Company or any of its Subsidiaries, (vi) pursuant to which the Company or any of its Subsidiaries has incurred indebtedness for borrowed money in excess of $50,000 or (vii) under which the consequences of a default or termination would result in a Material Adverse Effect.
(c) All of the Material Contracts are legal, valid and binding obligations of the Company or its applicable Subsidiary, are in full force and effect, and are enforceable against the Company or its applicable Subsidiary (and, to the Knowledge of the Company, against the other parties thereto) in accordance with the terms thereof (other than any Material Contract that shall have expired or terminated automatically in accordance with its terms prior to the Effective Time), including the respective aggregate principal amounts outstanding as . As of the date hereof, there does not exist under any Material Contract any violation, breach or event of this Agreementdefault, or alleged violation, breach or event of default, or event or condition that, after notice or lapse of time or both, would constitute a violation, breach or event of default thereunder on the part of any of the Company or any of its Subsidiaries or, to the Knowledge of the Company, any other party thereto, except for such violations, breaches, events or conditions that would not be reasonably expected to, individually or in the aggregate, have a Material Adverse Effect.
(d) Neither the Company nor any of its Subsidiaries is a party to or bound by any material labor agreement, union contract or collective bargaining agreement.
Appears in 1 contract
Sources: Merger Agreement (ACE LTD)
Contracts. (a) To the best knowledge of the Seller, SCHEDULE 4.15
(a) contains a complete and accurate list of each contract of the Seller (x) involving payments or other consideration in excess of (i) Neither $25,000 in any 12-month period, or (ii) $50,000 over the Company nor term of the contract or (y) which is otherwise material to the Business (collectively, the "CONTRACTS"), except for purchase orders of the Business. True and complete copies of each such written Contract (or written summaries of the terms of any such oral Contract or any oral modification of its Subsidiaries a written Contract) have been delivered to the Purchaser and, in the case of each Assumed Contract, true and complete copies of each such Assumed Contract have been delivered to the Purchaser.
(b) Except as set forth on SCHEDULE 4.15(b), (i) to the best knowledge of the Seller, no other party to any Contract is in violation or breach of or default in default under (any material respect thereunder nor does there exist any condition exist that upon the passage with notice or lapse of time or the giving of notice or both would cause constitute such a violation default thereunder, and (ii) the Seller has not received any notice, nor does the Seller otherwise have knowledge, that any party to any Contract intends to cancel, terminate or breach refuse to renew such Contract or to exercise or decline to exercise any option or right thereunder, except to the extent that any such notice would be ineffective and unenforceable as a result of the Chapter 11 Case; PROVIDED, HOWEVER, that Purchaser acknowledges that many Contract parties have indicated a willingness to abandon or default under) terminate certain Contracts if Seller cannot perform in a timely fashion such Contracts based on its financing and liquidity. To the best knowledge of the Seller, the Contracts are valid and binding on the Seller in accordance with their terms, except to the extent that the failure of any Contract to which it is a party or by which it or any of its properties or assets is boundbe valid and binding would not, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have aggregate, constitute a Seller Material Adverse Effect on and, upon the Company. The Company or one effectiveness of its Subsidiaries has good the 365 Order and marketable title the payment of the Cure Amounts, the Seller will not be in default thereunder in any material respects except delay in performance due to the Company's manufacturing facility lack of funding and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Companyliquidity.
(iic) Except for Contracts filed in unredacted form as exhibits To the best knowledge of the Seller and subject to the Company Filed SEC Documents, Section 3.01(j)(ii) entry and effectiveness of the Company Disclosure Schedule sets forth a true and complete list 365 Order, all Contracts shall be, as of the date Closing Date, valid and binding and enforceable against each other party thereto.
(d) To its best knowledge, the Seller has not waived any material right under any contract or other agreement of this Agreementthe type required to be set forth on any Schedule (in the understanding that the Purchaser acknowledges that, and the Company has delivered to Parent prior due to the date Seller's limited liquidity, Seller has delayed performance of this Agreement truecertain Contracts and agreements, complete and correct copies (including all amendments and modifications thereto) of:
(A) all Contracts which delays may give rise 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 restricting the ability right of the Company other contract parties to delay or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiariesterminate such Contracts);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreement.
Appears in 1 contract
Contracts. (i) Neither the Company nor any of its Subsidiaries is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party or by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) 3.15 of the Company Disclosure Schedule Letter sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date Agreement of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) all Contracts each Contract 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which either the Company or any of its Subsidiaries is a party or bound (including all amendments other than a Contract solely between or among the Company and modifications theretoits wholly-owned Subsidiaries) that (a) provides that any of them will not compete with any other Person, or which grants “most favored nation” protections to the counterparty to such Contract, in each case that is material to the Company and its Subsidiaries, taken as a whole, and after the Effective Time would be binding upon Parent or any of its Subsidiaries (other than the Company and its Subsidiaries); and
, (Db) all loan agreementspurports to limit in any material respect either the type of business in which the Company or its Subsidiaries may engage or the manner or locations in which any of them may so engage in any business, credit agreementsthat in each case after the Effective Time would be binding upon Parent or any of its Subsidiaries (other than the Company and its Subsidiaries), notes(c) requires the Company or its Subsidiaries (or, debenturesafter the Effective Time, bondsParent or its Subsidiaries) to deal exclusively with any Person or group of related Persons, mortgageswhich Contract is material to the Company and its Subsidiaries, indentures and taken as a whole (other than any licenses or other Contracts entered into in the ordinary course), (collectivelyd) is material to the formation, "debt obligations"creation, operation, management or control of any partnership or joint venture, (e) is required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act, (f) contains a put, call or similar right pursuant to which the Company or any indebtedness of its Subsidiaries would be required to purchase or sell, as applicable, any equity interests of any Person, (g) is a lease of real or personal property providing for annual payments of $500,000 or more, (h) relates to Borrowed Money Indebtedness of the Company or any of its Subsidiaries (A) in a principal amount that exceeds $250,000 or (B) which imposes a Lien on assets of the Company or any of its Subsidiaries with a value in excess of $500,000, (i) is outstanding a material partnership, limited liability company, joint venture or other similar agreement or arrangement involving the Company or any of its Subsidiaries, on the one hand, and any third party, on the other hand, (j) is a Contract providing for the acquisition or disposition of any business or operations (whether by merger, sale of stock, sale of assets or otherwise) as to which there are any material ongoing obligations, (k) contains any license or other right with respect to any Intellectual Property that is material to the conduct of the business or the Company and its Subsidiaries (other than inbound (x) licenses for off-the-shelf software commercially available on standard and non-negotiable terms for an aggregate fee of no more than $100,000 and (y) non-exclusive licenses to Intellectual Property that are merely incidental to the primary purpose of such Contract) or (l) is not of a type (disregarding any dollar thresholds, materiality or other qualifiers, restrictions or other limitations) described in the foregoing clauses (a) through (k) that has or would reasonably be likely to involve payments or receipts in excess of $15,000,000 in any year (such Contracts required to be listed pursuant to clauses (a) through (l) above, the “Material Contracts”). A true, correct and complete copy of each Material Contract, as amended as of the date of this Agreement, including all attachments, schedules and exhibits thereto, has been made available to Parent prior to the date of this Agreement. Each of the Material Contracts is valid and binding on the Company or its Subsidiaries, as the case may be incurred and, to the knowledge of the Company, each other party thereto, and all guarantees is in full force and effect, except for such failures to be valid and binding or to be in full force and effect as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company, any other party is in breach of or in default under any Material Contract, and no event has occurred that, with the lapse of time or the giving of notice or both, would constitute a default thereunder by the Company or any of its Subsidiaries of any debt obligations of any other person (other than Subsidiaries, in each case, except for such breaches and defaults as would not, individually or in the Company or any of its Subsidiaries)aggregate, including the respective aggregate principal amounts outstanding as of the date of this Agreementreasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Sources: Merger Agreement (Foundation Building Materials, Inc.)
Contracts. (i) Neither the Company nor any of its Subsidiaries is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party or by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for (A) Contracts filed in unredacted form as exhibits to the Filed Company Filed SEC DocumentsDocuments and (B) Contracts that the Company made available for review by representatives of Parent and which were considered “Restricted Evaluation Material” (as that term is defined in the Confidentiality Agreement, as supplemented by the letter agreement dated as of February 16, 2007) (the Contracts referred to in this clause (B), the “Restricted Contracts”), Section 3.01(j)(ii3.01(i)(i) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered made available to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) all Contracts that are of a nature required to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act and the rules and regulations promulgated thereunder;
(B) all Contracts of the Company or any of its Subsidiaries made in the ordinary course of business involving annual payments by or to the Company or any of its Subsidiaries, of more than $5,000,000;
(C) 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(BD) all material Contracts of the Company or any of its Subsidiaries made outside the ordinary course of business;
(E) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(CF) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(DG) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "“debt obligations"”) pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreement.
(ii) None of the Company, any of its Subsidiaries or, to the Knowledge of the Company, any other party thereto is in violation of or in default under (nor does there exist any condition which upon the passage of time or the giving of notice or both would cause such a violation of or default under) any Contract to which it is a party or by which it or any of its properties or other assets is bound, except for violations or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect.
(iii) The Restricted Contracts represent at least 80% of the aggregate volume purchased or sold, as the case may be, by the Company and its Subsidiaries of each product or service they purchased or sold.
Appears in 1 contract
Contracts. (i) Neither As of the Company nor date hereof, except as filed as exhibits to Parent SEC Documents and as disclosed in Section 2.14 of the Parent Disclosure Schedule, none of Parent or any of its Subsidiaries is a party to or bound by any Contract that (a) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act), (b) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to Parent or any of its Subsidiaries, or which restricts the conduct of any line of business by Parent or any of its Subsidiaries or any geographic area in which Parent or any of its Subsidiaries may conduct business, in each case in any material respect or (c) would prohibit or materially delay the consummation of the Merger or any of the transactions contemplated by this Agreement. As of the date hereof, each Contract of the type described in this Section 2.14, whether or not set forth in Section 2.14 of the Parent Disclosure Schedule, is referred to herein as a “Parent Material Contract.” Each Parent Material Contract is valid and binding on Parent and each of its Subsidiaries party thereto and each other party thereto, and in full force and effect, and Parent and each of its Subsidiaries has in all respects performed all obligations required to be performed by it to the date hereof under each Parent Material Contract and each other party to each Parent Material Contract has in all respects performed all obligations required to be performed by it under such Parent Material Contract, except as would not, individually or in the aggregate, have a Parent Material Adverse Effect. As of the date hereof, none of Parent or any of its Subsidiaries has received any written notice of any violation or breach of or in default under (nor does there exist or any condition that upon which with the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party or by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Parent Material Adverse Effect on the CompanyContract. The Company or one of its Subsidiaries Parent has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits made available to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as copies of the date of this Agreement, and the Company has delivered to each Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this AgreementMaterial Contract.
Appears in 1 contract
Contracts. (ia) Neither Except as set forth on Section 3.10(a) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries is in violation a party to, and none of their respective properties or breach other assets is subject to, any Contract that is of a nature required to be filed as an exhibit to a report or in default filing under (nor does there exist any condition that upon the passage of time Securities Act or the giving of notice or both would cause such a violation or breach of or default under) Exchange Act, other than any Contract to which it that is a party or by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title filed as an exhibit to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the CompanyFiled Company SEC Documents.
(iib) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii3.10(b) of the Company Disclosure Schedule Letter sets forth a true correct and complete list as of the date of this Agreement, and the Company has delivered to Parent has, prior to the date of this Agreement truehereof, made available to Parent correct and complete and correct copies (including all amendments and modifications theretomaterial amendments, modifications, extensions, renewals or guaranties) ofof the following:
(i) all Contracts of the Company or any of its Subsidiaries (A) involving payments by or to the Company or any of its Subsidiaries of more than $750,000 on an annual basis or (B) involving payments by or to the Company or any of its Subsidiaries of more than $100,000 on an annual basis and which may not be terminated by the Company without cause within one year without penalty;
(ii) all Contracts to which the Company or any of its Subsidiaries is a party, or that purports to be binding upon by which the Company, any of its Subsidiaries or any of its AffiliatesAffiliates is bound, that contain a covenant restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could would restrict the ability of Parent or any of its Subsidiaries, including the Company Surviving Corporation and its Subsidiaries) to compete in any business or with any person or in any geographic areaarea or which prohibits the Company or any of its Subsidiaries from soliciting suppliers anywhere in the world;
(Biii) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries)) in which the amount involved exceeds $120,000 on an annual basis;
(Civ) all joint venture, partnership or other similar agreements any (A) Contract to which the Company or any of its Subsidiaries is a party granting any license to Intellectual Property, (including B) other license (other than real estate) by the Company or any of its Subsidiaries, in either case of (A) and (B) involving payments of more than $750,000 on an annual basis, and (C) other IP License that is material to the Company and its Subsidiaries, taken as a whole (other than standard form Contracts granting rights to use readily available shrink wrap or click wrap Software having a replacement cost and annual license fee of less than $75,000 in the aggregate for all amendments and modifications theretosuch related Contracts); and;
(Dv) all loan agreementsconfidentiality agreements of the Company or any of its Subsidiaries (other than in the ordinary course of business or with respect to potential strategic transactions involving a direct or indirect sale of the Company), credit agreementsagreements by the Company or any of its Subsidiaries 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 or any of its Subsidiaries;
(vi) any Contract of the Company or any of its Subsidiaries involving payments by or to the Company or any of its Subsidiaries, notesof more than $750,000 on an annual basis that requires consent of or notice to a third party in the event of or with respect to the Merger, debenturesincluding in order to avoid a breach or termination of or loss of benefit under any such Contract;
(vii) all joint venture, bondspartnership or other similar agreements involving co-investment with a third party to which the Company or any of its Subsidiaries is a party;
(viii) any Contract of the Company or any of its Subsidiaries with a Governmental Authority;
(ix) all material outsourcing Contracts of the Company or any of its Subsidiaries;
(x) all Contracts providing for the indemnification by the Company or any of its Subsidiaries of any person, mortgages, indentures except for any such Contract that (i) is not material to the Company or any of its Subsidiaries and other (ii) was entered into in the ordinary course of business;
(xi) all Contracts (collectively, "debt obligations") pursuant to which any indebtedness Indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred (except for such Indebtedness the aggregate principal amount of which does not exceed $750,000);
(xii) all Company Management Agreements;
(xiii) all Contracts of the Company or any of its Subsidiaries with hospice providers, home health providers and therapy providers, (i) not terminable upon 120 days’ notice or less and without cost or penalty, (ii) involving annual amounts exceeding $4,000,000 or (iii) otherwise material to the Company and its Subsidiaries, taken as a whole;
(xiv) all guarantees Contracts of the Company or any of its Subsidiaries with a third party payor or in connection with a Government Program regarding the provision of health care services by the Company or any of its Subsidiaries of involving annual amounts exceeding $2,500,000 for any debt obligations of any other person particular Company Facility or otherwise material to the Company and its Subsidiaries, taken as a whole;
(other than xv) all Contracts to which the Company or any of its Subsidiaries is a party relating to the construction or development of, any addition to, or any material improvement project with respect to, any Company Facility or Company Management Property or with respect to any real property that, upon completion, will be a facility owned, leased, subleased and/or operated by the Company and/or any of its Subsidiaries (including, without limitation, pursuant to any management agreement with a third party); and
(xvi) all leases, subleases, licenses or other occupancy agreements pursuant to which the Company or any of its Subsidiaries uses or occupies real property (other than any Company Lease) involving annual amounts exceeding $750,000 or otherwise material to the Company and its Subsidiaries, taken as a whole.
(c) Except as set forth on Section 3.10(c) of the Company Disclosure Letter, (i) none of the Company or any of its Subsidiaries (x) is, or has received written notice or has Knowledge that any other party to any of its Contracts is, in violation or breach of or default (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, (ii) to the Knowledge of the Company, 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 Contract, and (iii) each such Contract is in full force and effect and is a legal, valid and binding agreement of, and enforceable against, the Company or its Subsidiary, and, to the Knowledge of the Company, 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), including (ii) or (iii) above that, individually or in the respective aggregate principal amounts outstanding as of the date of this Agreementaggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
Contracts. (a) Schedule 3.10(a) to the Disclosure Memorandum contains a complete and accurate list of (each, a “Material Contract”) (i) Neither all Contracts, other than vendor agreements and purchase orders with vendors entered into in the ordinary course of business, to which the Company nor or any of its Subsidiaries is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is currently a party or by which it the Company or any of its properties Subsidiaries is currently bound providing for potential payments by or assets is bound, except for violations, breaches or defaults that individually or in to the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one any of its Subsidiaries has good and marketable title in excess of $250,000 per annum (with Schedule 3.10(a) to the Company's manufacturing facility Disclosure Memorandum identifying with respect to each Material Contract each of clauses (i) through (vii) of Section 3.10(c) applicable to such Material Contract, if any), (ii) each Contract relating to the Debt, and executive and general offices located in Montpelier, Ohio, free and clear of (iii) all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances other Contracts that individually or in the aggregate have not had and would not reasonably be expected are material to have a Material Adverse Effect on the Company.
(iib) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) all All Contracts to which the Company or any of its Subsidiaries is a partyparty are valid, binding and enforceable in accordance with their terms against the Company or that purports its Subsidiaries, as the case may be, and each other party thereto and are in full force and effect (subject only to be binding upon the effect, if any, of applicable bankruptcy and other similar laws affecting the rights of creditors generally and rules of law governing specific performance, injunctive relief and other equitable remedies), the Company or its Subsidiaries, as the case may be, has performed all obligations required to have been performed by it thereunder, and neither the Company, its Subsidiaries, nor to the Knowledge of the Company, any other party thereto is in breach or violation of, or default under (including any such breach, violation or default caused by a violation of a noncompetition, nonsolicitation or exclusivity provision contained therein), nor is there any event that with notice or lapse of time, or both, would constitute a breach, violation or default by the Company, its Subsidiaries Subsidiaries, or any of its Affiliatesother party thereunder, that contain a covenant restricting the ability of nor has the Company or any of its Subsidiaries received any claim of any such breach, violation or default. There is not now and has not been within the past 24 months any disagreement or dispute with any other party to any Material Contract, nor is there any pending request or process for renegotiation of any Material Contract. Further, there is not now and has not been within the past 24 months any disagreement or dispute of any nature whatsoever with any other party to any Contract having or reasonably likely to have a Material Adverse Effect. True and complete copies of each such written Material Contract (or which, following the consummation written summaries of the Mergerterms of any such oral Material Contract) have been delivered or been made available to Parent. The Company has no reason to believe that any obligation that remains under any Material Contract cannot be fulfilled by the Company or its Subsidiaries, could restrict as the ability of Parent case may be, and has no notice or Knowledge that any party to a Material Contract listed on Schedule 3.10(a) to the Disclosure Memorandum intends to cancel, terminate, refuse to perform or refuse to renew such Material Contract (if such Material Contract is renewable).
(c) Except for the Material Contracts listed in Schedule 3.10(a) to the Disclosure Memorandum, neither the Company nor any of its Subsidiaries has any other Contract:
(i) with a remaining term of greater than one year from the date of this Agreement (which, for purposes of clarity, shall be determined based on the term of the primary subject matter of such Contract, and not incidental obligations such as non-disclosure, post-termination indemnity, etc.) that cannot be canceled by the Company or its Subsidiaries, including as the case may be, with no more than 60 days’ notice without liability, penalty or premium (other than non-disclosure agreements);
(ii) with a noncompetition, nonsolicitation, “most-favored-nations” pricing or exclusivity agreement or other arrangement that would prevent, restrict or limit in any way the Company and from carrying on its Subsidiaries) to compete business in any business or with any person manner or in any geographic arealocation, other than restrictions in Intellectual Property Agreements on the Exploitation of Third Party IP;
(Biii) all Contracts of the Company for a joint venture or any other similar arrangement that involves a sharing of its Subsidiaries profits or revenue with any Affiliate other Persons or that provides for the payment of the Company (other than any of its Subsidiaries)referral fees or bounties;
(Civ) all joint venturerelating to any interest rate, partnership currency or other similar agreements to commodity derivatives or hedging transaction;
(v) with any Governmental Body;
(vi) in which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto)agrees to provide indemnification that may result in liability in excess of $250,000; and
(Dvii) all loan agreementsgranting a power of attorney, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant agency or similar authority to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreementanother Person.
Appears in 1 contract
Sources: Merger Agreement (Amazon Com Inc)
Contracts. Except as disclosed on Exhibit 2.15, and to the best of the --------- ------------ Management Shareholders' knowledge:
(ia) Neither the The Company nor any and each of its Subsidiaries is in violation or breach have fulfilled all of or in default their obligations required under the Materials Contracts (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default underas defined below) any Contract to which it is a party or by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The been performed by Company or one of and/or its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually on or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:Closing Date;
(Ab) all Contracts to which the Company or There has not occurred any default under any of its Subsidiaries is a party, or that purports to be binding upon the Material Contracts on the part of Company, any of its Subsidiaries or any other party thereto, nor has any event occurred which, with the giving of notice or the lapse of time, or both, would constitute a default under any of the Material Contracts on the part of Company, any of its AffiliatesSubsidiaries or any other party thereto; and
(c) No consent of any party to any of the Material Contracts is required for (i) the execution, delivery or performance of this Agreement or (ii) the consummation of the transactions contemplated hereby.
(d) Exhibit 2.15 contains a complete and accurate list, ------------ and Management Shareholders have delivered to Buyer true and complete copies, of (collectively, the "Material Contracts"):
(i) each contract that contain a covenant restricting the ability involves performance of services or delivery of goods or materials by the Company or any of its Subsidiaries (or which, following the consummation in excess of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area$25,000;
(Bii) all Contracts each contract that was not entered into in the ordinary course of business;
(iii) each lease, 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 (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $25,000 and with terms of less than one year);
(iv) each licensing agreement or other contract with respect to patents, trademarks, copyrights or other intellectual property, including agreements with current or former employees, consultants or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property;
(v) each joint venture, partnership and other contract (however named) involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any Affiliate other person or entity;
(vi) each contract containing covenants that in any material way purport to restrict the business activity of the Company or any of its Subsidiaries or limit the freedom of the Company or any of its Subsidiaries to engage in any line of business or to compete with any person or entity;
(vii) each contract providing for payments to or by any person or entity based on sales, purchases or profits other than direct payments for goods;
(viii) each contract entered into other than in the ordinary course of business that contains or provides for an express undertaking by the Company or any of its Subsidiaries to be responsible for consequential damages;
(ix) each contract for capital expenditures in excess of $25,000 individually, or in the aggregate;
(x) each written warranty, guaranty or other similar undertaking with respect to contractual performance extended by the Company or any of its Subsidiaries other than in the ordinary course of business;
(xi) each amendment, supplement and modification (whether oral or written) in respect of any of the foregoing; and
(xii) each debt agreement (including any amendment thereto) applicable to the Company or any Subsidiary.
(e) Except as set forth in Exhibit 2.15, no Shareholder ------------ (and no person related to a Shareholder) has or may acquire any rights under, and no Shareholder has or may become subject to any obligation or liability under, any Material Contract that relates to the business of, or any of the assets owned or used by, the Company or any of its Subsidiaries).
(f) Except as set forth on Exhibit 2.15, each Material ------------ Contract identified or required to be identified herein is in full force and effect and is valid and enforceable in accordance with its terms.
(g) Except as set forth on Exhibit 2.15: ------------
(i) The Company and each of its Subsidiaries is, and at all times has been, in full compliance in all material respects with all applicable terms and requirements of each Material Contract under which the Company and each of its Subsidiaries have or had any obligation or liability or by which the Company and each of its Subsidiaries or any of the assets owned or used by the Company and each of its Subsidiaries is or was bound;
(Cii) all joint venture, partnership Each other person or other similar agreements to entity that has any obligation or liability under any Material Contract under which the Company or any of its Subsidiaries have any rights is a party (including in material compliance with all amendments applicable terms and modifications thereto); andrequirements of each such Material Contract;
(Diii) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures As to acts and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness omissions of the Company or any of its Subsidiaries is outstanding or of other persons or entities, no event has occurred or circumstance exists that (with or without notice or lapse of time) may be incurred and all guarantees of contravene, conflict with, or by result in a violation or breach of, or give the Company or any of its Subsidiaries of or other person the right to declare a default or exercise any debt obligations of remedy under, or to accelerate the maturity or performance of, or to cancel, terminate or modify, any Material Contract; and
(iv) The Company and its Subsidiaries have not given to or received from any other person person, at any time in the two (2) previous calendar years, any notice or other than communication (whether oral or written) regarding any actual or alleged violation or breach of, or default under, any Material Contract.
(h) There are no renegotiations of or attempts to renegotiate any material amounts paid or payable to the Company or any of its Subsidiaries)Subsidiaries under current or completed Material Contracts with any person or entities and no such person or entity has made written demand for such renegotiation.
(i) The Material Contracts relating to the sale, including design, manufacture or provision of products or services by the respective aggregate principal amounts outstanding Company and its Subsidiaries have been entered into in the ordinary course of business and have been entered into without the commission of any act alone or in concert with any other person or entity, or any consideration having been paid or promised, that is or would be in violation of any law.
(j) Except as of set forth on Exhibit 2.15, the date of this AgreementCompany and ------------ its Subsidiaries have not been notified (orally or in writing) that any customer desires to return any product ordered or has failed to pay (or indicated an intent not to pay) for any products or services ordered.
Appears in 1 contract
Sources: Stock Purchase Agreement (Applied Digital Solutions Inc)
Contracts. (a) Schedule 2.02 contains a list of all Contracts, true copies of which have been provided to the Purchaser.
(b) Except as set forth in Schedule 3.07 of the Disclosure Schedule: (i) Neither each of the Company nor Contracts is a legal, valid and binding agreement of the Vendor and, to the knowledge of the Vendor, of the other parties thereto, and is in full force and effect; (ii) each Contract is enforceable in accordance with its terms against the Vendor and, to the knowledge of the Vendor, enforceable in accordance with its terms against all other parties thereto, and, the Vendor has fulfilled all of its obligations under the Contracts due on or before the Closing and has taken all action reasonably necessary to be taken to enable it to fulfill when due all of its other obligations under the Contracts; (iii) there is not existing any default on the part of the Vendor (or, to the knowledge of the Vendor, any event or condition which, with notice or the lapse of time or both, would constitute a default on the part of any other party) under any Contract; (iv) neither the Vendor nor, to the knowledge of the Vendor, any other party is in arrears in respect of the performance or satisfaction of the terms or conditions on its part to be performed or satisfied under any of its Subsidiaries the Contracts, and no waiver or indulgence will have been granted by any of the parties thereto; and (v) no consent is required from any third party.
(c) Except as disclosed on Schedule 3.07 of the Disclosure Schedule, the Vendor is not a party to any (i) contract, (ii) agreement, (iii) plan or (iv) other arrangement which materially relates to, or materially affects, the business and operations of the Business.
(d) The Vendor is not in violation default or breach of any obligation under any contract, agreement, commitment, indenture or in default under (nor does there exist any condition that upon the passage of time other instrument, whether written or the giving of notice or both would cause such a violation or breach of or default under) any Contract oral, to which it the Vendor, or any one of them, is a party or by which it or any of its properties or assets the Vendor is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title bound which relate to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear Purchased Assets nor is there a state of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) 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 restricting the ability of the Company or any of its Subsidiaries (or facts which, following the consummation after notice of the Mergerlapse of time or both, could restrict the ability of Parent will constitute such a default or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreementbreach.
Appears in 1 contract
Contracts. (ia) Neither Except for this Agreement, as of the date hereof, none of the Company nor or any of its Subsidiaries is a party to or bound by (each such Contract, a "Material Contract"): (i) any Contract that would be required to be filed by the Company as a "material contract" pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act (in violation each case, other than a Benefit Plan); (ii) any Contract containing covenants binding upon the Company or breach any of its Subsidiaries that materially restricts the ability of the Company or any of its Subsidiaries to compete in any business or in any geographic area that is material to the Company and its Subsidiaries, taken as a whole, as of the date hereof except for any such Contract that may be canceled without material penalty by the Company or any of its Subsidiaries upon notice of seventy-five (75) days or less; (iii) any Contract with respect to a material joint venture or material partnership agreement; (iv) any Contract providing for Indebtedness of the Company or any of its Subsidiaries having an outstanding or committed amount in excess of $5,000,000, other than any Indebtedness between or among any of the Company and any of its wholly-owned Subsidiaries; (v) any Contract limiting or prohibiting the payment of dividends or distributions in respect of the capital stock or other equity securities of the Company or 25 any of its Subsidiaries, prohibiting the pledging of any capital stock or other equity securities of the Company or any of its Subsidiaries or prohibiting the issuance of guarantees by the Company or any of its Subsidiaries (other than pursuant to applicable Law or Order) except for any such Contract that may be canceled without material penalty by the Company or any of its Subsidiaries upon notice of seventy-five (75) days or less; (vi) any Contract pursuant to which the Company (A) licenses any material Intellectual Property from any non-Affiliated Person (other than licenses for open source or off-the-shelf software pursuant to "click-wrap" or "shrink-wrap" agreements), or (B) licenses any material Intellectual Property to any non-Affiliated Person; (vii) any Contract the principal purpose of which is to indemnify any current or former stockholder of the Company in respect of any potential Tax liabilities; (viii) any collective bargaining agreement; (ix) any Top 10 Program Reinsurance Contract; or (x) any Contract relating to an acquisition, divestiture, merger or similar transaction and which contains representations, covenants, indemnities or other obligations (including indemnification, "earn-out" or other contingent obligations) that are still in effect (other than this Agreement and confidentiality agreements in connection with any potential acquisition, divestiture, merger or similar transaction). (b) Each of the Material Contracts and each of the Contracts with a Top 10 Program Counterparty is valid and binding on the Company and each of its Subsidiaries party thereto and, to the Knowledge of the Company as of the date of this Agreement, each other party thereto and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. There is no default under (nor does there exist any condition Material Contract or any Contract with a Top 10 Program Counterparty by the Company or any of its Subsidiaries and no event has occurred that upon with the passage lapse of time or the giving of notice or both would cause such constitute a violation or breach of or default under) any Contract to which it is a party or thereunder by which it the Company or any of its properties or assets is boundSubsidiaries, in each case except for violationsas would not, breaches or defaults that individually or in the aggregate aggregate, reasonably be expected to have not had a Company Material Adverse Effect. (c) Section 4.10(c) of the Company Disclosure Letter sets forth a list as of the date hereof of all material Contracts between the Company or one of its Subsidiaries, on the one hand, and CUMIS, on the other hand (each, a "CUMIS Material Contract"). Each CUMIS Material Contract is valid and binding on the Company and each of its Subsidiaries party thereto and, to the Knowledge of the Company as of the date of this Agreement, CUMIS, and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect that would not reasonably be expected to have a Company Material Adverse Effect on the CompanyEffect. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a There is no default under any CUMIS Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or Contract by the Company or any of its Subsidiaries and no event has occurred that with the lapse of any debt obligations time or the giving of any other person (other than notice or both would constitute a default thereunder by the Company or any of its Subsidiaries), including in each case except as would not, 26 individually or in the respective aggregate principal amounts outstanding as of the date of this Agreementaggregate, reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
Sources: Merger Agreement
Contracts. (ia) Neither Section 2.20(a) of the Company nor Letter contains a list of all active leases and subleases of Real Estate by the Company (collectively, the “Real Estate Leases”). Section 2.20(a) of the Company Letter also contains a list of all leases or subleases of personal property which are material to the operation of the Business as currently conducted by the Company (collectively, the “Personal Property Leases”; the Real Estate Leases and the Personal Property Leases are hereinafter collectively referred to as the “Leases”).
(b) Section 2.20(b) of the Company Letter contains a list of all active contracts to which the Company and any Governmental Entity is a party, and any active contracts pursuant to which the Company acts as a vendor or a subcontractor for a party having a contract with a Governmental Entity (collectively, the “Government Contracts”). Section 2.20(b) of its Subsidiaries the Company Letter sets forth which of the Government Contracts are Section 8(a) Contracts.
(c) Section 2.20(c) of the Company Letter contains a list of all active teaming agreements and vendor and supply agreements which are material to the operation of the Business as currently conducted by the Company (collectively, the “Additional Contracts”) (the Leases, Governmental Contracts and the Additional Contracts are collectively referred to herein as the “Material Contracts”).
(d) Except as set forth in Section 2.20(d) of the Company Letter, neither the Company nor, to the Knowledge of the Company, any other party to any Material Contract is currently in material violation, breach or default under any such contract or, with or without notice or lapse of time or both, would be in violation or breach of or in default under any such contract.
(e) Except as set forth in Section 2.20(e) of the Company Letter, to the Knowledge of the Company, with respect to the Government Contracts:
(i) no Government Contract was entered into with the anticipation that such contract would result in a loss upon completion or performance thereof, nor does has anything come to the attention of the Company which would reasonably lead them to believe that there exist are any such Government Contracts currently expected to result in any loss;
(ii) the Company has made, in a timely and proper fashion, any and all material claims to which it may be entitled and all appeals necessary to preserve its rights in connection with all Government Contracts;
(iii) there are no open inquiries, investigations, disputes or controversies with respect to any Government Contracts; and
(iv) the Company has not engaged in any collusive bidding, defective pricing, conflicts of interest, or undisclosed product substitution or improper time or expense charging or payment of gratuities with respect to any Government Contract, and all statements, claims and certifications made in connection with any Government Contract were true, accurate and complete in all material respects when made.
(f) Except as to any of the Material Contracts, the Company is not a party to or bound by:
(i) any contract for the purchase, sale or lease of real property;
(ii) any agreement which provides for, or relates to, the incurrence by the Company of debt for borrowed money (including, without limitation, any interest rate or foreign currency swap, cap, collar, hedge or insurance agreements, or options or forwards on such agreements, or other similar agreements for the purpose of managing the interest rate and/or foreign exchange risk associated with its financing);
(iii) any non-competition agreement, exclusive territory, exclusive product, no-hire or non-solicitation agreement or similar agreement that limits or restricts the Company from carrying on any business;
(iv) any contract or agreement which provides for a most favored pricing provision or any similar provision for any customer of the Company; and
(v) any non-disclosure or similar agreement restricting the Company’s ability to disclose any information or data.
(g) Except as set forth in Section 2.20(g) of the Company Letter, there are no contracts or agreements of the Company having terms or conditions which would have a Material Adverse Effect on the Company or that materially impair the ability of the Company to conduct the Business as currently conducted or would reasonably be expected to materially impair the Surviving Corporation’s ability to conduct the Business after the Effective Time
(h) Except as set forth in Section 2.20(h) of the Company Letter, each Material Contract constitutes a valid, binding and enforceable obligation of the Company and, to the Knowledge of the Company, the other parties thereto, enforceable against the parties in accordance with its respective terms, subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws related to creditor’s rights and remedies generally, and is in full force and effect and will continue in full force and effect after the Effective Time, in each case, without breaching the terms thereof or resulting in the forfeiture, termination or impairment of any rights thereunder and without the consent, approval or act of, or the making of any filing with, any other party. The Company is not in, or is not alleged to be in, breach or default thereunder, nor is there or is there alleged to be any basis for termination thereof, and, to the Knowledge of the Company, no other party to any such Material Contract has breached or defaulted thereunder or has acted or failed to act in any manner that is reasonably likely to result in criminal charges or claims for material damages being brought against the Company, and no event or set of circumstances has occurred and no condition that upon or state of facts or set of circumstances exists which, with the passage of time or the giving of notice or both both, would cause constitute such a violation default or breach of or default under) any Contract to which it is a party or by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or by any of its Subsidiaries of any debt obligations of any such other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreementparty.
Appears in 1 contract
Contracts. (i) Neither the Company nor any of its Subsidiaries is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party or by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii3.01(h) of the Company Disclosure Schedule Letter sets forth (with specific reference to the subsection of this Section 3.01(h) to which such Contract relates, including any further subsection) a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) all Contracts each Contract pursuant 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) has agreed not to compete in any business or with any person or in any geographic areaarea or to engage in any activity or business, or pursuant to which any material benefit or right is required to be given or lost, or any material penalty or detriment is incurred, as a result of so competing or engaging;
(B) all Contracts of the Company each Contract to or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to by which the Company or any of its Subsidiaries is a party or bound (including all amendments and modifications thereto); and
1) providing for exclusivity, (D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations"2) pursuant to which the Company or any indebtedness of its Subsidiaries is restricted in any material respect, or (3) which after the Effective Time would restrict Parent or any of its Subsidiaries in any material respect, in each case which exclusivity or restrictions apply to the development, manufacture, marketing, franchising or distribution of their respective products or services or otherwise with respect to the operation of their respective businesses;
(C) each Contract to or by which the Company or any of its Subsidiaries is a party or bound or with respect to which the Company or any of its Subsidiaries has any material obligation with (1) any affiliate of the Company or any of its Subsidiaries, (2) any Company Personnel, (3) any union or other labor organization or (4) any affiliate of any such person (other than, in each case, (I) offer letters or employment agreements that are terminable at will by the Company or any of its Subsidiaries both without any penalty and without any obligation of the Company or any of its Subsidiaries to pay severance or other compensation or benefits (other than accrued base salary, accrued commissions, accrued bonuses, accrued vacation pay, accrued floating holidays and legally mandated benefits), (II) Benefit Plans and Benefit Agreements other than offer letters or employment agreements and (III) Contracts between the Company or one of its Subsidiaries and any of the Company’s Subsidiaries);
(D) each Contract under which the Company or any of its Subsidiaries has incurred any indebtedness having an aggregate principal amount in excess of $250,000;
(E) each Contract to or by which the Company or any of its Subsidiaries is outstanding a party or may be bound creating or granting a Lien (including Liens upon properties or assets acquired under conditional sales, capital leases or other title retention or security devices), other than (1) Liens for taxes assessments and other governmental charges 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 established, (2) Liens for landlords’, carriers’, warehousemen’s, mechanics’, repairmen’s, workers’ or similar Liens incurred in the ordinary course of business, in each case for sums not yet due and all guarantees 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 types of social security or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, performance and return of money bonds and similar obligations and (4) Liens incurred in the ordinary course of business that are not reasonably likely to adversely interfere in a material way with the use of the properties or assets encumbered thereby (collectively, “Permitted Liens”);
(F) each Contract to or by which the Company or any of its Subsidiaries is a party or bound (other than Benefit Plans and Benefit Agreements) containing any provisions contemplating or relating in any way to a “change in control” or similar event with respect to the Company or one or more of its Subsidiaries, including provisions requiring consent or approval of, or notice to, any Governmental Entity or other person in the event of a change in control of the Company or one or more of its Subsidiaries, or otherwise having the effect of providing that the consummation of the Merger or any of the other transactions contemplated by this Agreement or the execution, delivery or effectiveness of this Agreement will materially conflict with, result in a material violation or material breach of, or constitute a default (with or without notice or lapse of time or both) under, such Contract, or give rise under such Contract to any right of, or result in, a termination, right of first refusal, material amendment, revocation, cancelation or material acceleration of any obligation, or a loss of a material benefit or the creation of any material Lien upon any of the properties or assets of the Company, Parent or any of their respective Subsidiaries, or to any increased, guaranteed, accelerated or additional material rights or material entitlements of any person;
(G) each Contract pursuant to which the Company or any of its Subsidiaries (1) consented to or agreed not to assert rights with respect to the use or registration by a third party of the trademark “Teavana” or any similar trademark or (2) has received a third party’s consent to the use or registration by the Company or any of its Subsidiaries of the trademark “Teavana” or any debt obligations similar trademark;
(H) each Contract to or by which the Company or any of its Subsidiaries is a party or bound 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 or its Subsidiaries;
(I) each Contract containing any “non-solicitation”, “no-hire” or similar provision that restricts the Company or any of its Subsidiaries in any material respect;
(J) each Contract to or by which the Company or any of its Subsidiaries is a party or bound forming or establishing, or relating to the formation or establishment of, any joint venture (whether in partnership, limited liability company or other organizational form) or alliance or similar arrangement;
(K) each Contract to or by which the Company or any of its Subsidiaries is a party or bound with any Governmental Entity;
(L) each Contract to or by which the Company or any of its Subsidiaries is a party or bound entered into in the last five years in connection with the settlement or other resolution of any other person suit, claim, action, investigation or proceeding;
(M) each Contract to or by which the Company or any of its Subsidiaries is a party or bound containing any standstill provisions which in any way limit the ability of the Company or any of its Subsidiaries to acquire the securities or assets of any person;
(N) each Contract between the Company or any of its Subsidiaries and any Major Vendor, including any material terms and conditions that are in effect as of the date of this Agreement and referenced in purchase orders with any such Major Vendor (other than ordinary course terms and conditions regarding purchase price, amounts and delivery) and any written or oral commitments to purchase additional products, supplies, services or ingredients from any such Major Vendor in excess of $100,000;
(O) each Contract to or by which the Company or any of its Subsidiaries is a party or bound that contains any indemnification rights or obligations, or credit support relating to such indemnification rights or obligations, other than any of such indemnification rights or obligations incurred in the ordinary course of business;
(P) each Contract not otherwise disclosed under this Section 3.01(h)(i) which has aggregate future sums due to or from the Company or any of its Subsidiaries), including taken as a whole, (1) during the respective aggregate principal amounts outstanding as of period commencing on the date of this Agreement and ending on the 12-month anniversary of this Agreement, in excess of $500,000 or (2) of more than $1,500,000 during the life of the Contract; and
(Q) except for the Contracts disclosed above, each material Contract to or by which the Company or any of its Subsidiaries is a party or bound not made in the ordinary course of business. The Contracts of the Company or any of its Subsidiaries of the type referred to in clauses (A) through (Q) of this subsection (i) (whether in effect on the date of this Agreement or entered into following the date of this Agreement and prior to the Closing Date), together with the Franchise Agreements, are collectively referred to in this Agreement as “Specified Contracts”. The Company has made available to Parent a complete and correct copy of each of the Specified Contracts, 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 the Company or such 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 has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (x) each of the Company and its Subsidiaries is not (with or without notice or lapse of time or both) in breach or default under any Specified Contract and has not waived or failed to enforce any rights or benefits thereunder (other than in the ordinary course of business), (y) no other party to any of the Specified Contracts is (with or without notice or lapse of time or both) in breach or default thereunder and (z) there has occurred no event that (with or without notice or lapse of time or both) would give to others any right of termination, material amendment or cancellation of any Specified Contract.
Appears in 1 contract
Sources: Merger Agreement (Starbucks Corp)
Contracts. (ia) Neither the Company FEI nor any of its Subsidiaries is a party to or is bound by any written contract, arrangement or commitment (i) with respect to the employment of any directors, officers or employees other than in violation the ordinary course of business consistent with past practice, (ii) which, upon the consummation or breach stockholder approval of the transactions contemplated by this Merger Agreement, will (either alone or upon the occurrence of any additional acts or events) result in any payment (whether of severance pay or otherwise) becoming due from FEI, Veeco, the Surviving Corporation or any of their respective Subsidiaries to any officer or employee thereof, (iii) which is a "material contract" (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) to be performed, entirely or in default part, after the date of this Merger Agreement, but which has not been previously filed with the SEC, (iv) which are of the type required to be disclosed under Item 404 of Regulation S-K of the SEC, but which has not been previously filed with the SEC, (nor does there exist v) which materially restricts the conduct of any condition that line of business by FEI or any Subsidiary thereof or, upon consummation of the Merger, will materially restrict the ability of Veeco or the Surviving Corporation or any Subsidiary thereof to engage in any proposed line of business or (vi) which, upon the passage consummation or stockholder approval of time the transactions contemplated by this Merger Agreement, will result in any of the Veeco Entities or any of the giving FEI Entities, granting any rights or licenses to any material Intellectual Property of notice any of the Veeco Entities or both would cause such any of the FEI Entities, to any third party. Each contract, arrangement, commitment or understanding of the type described in this Section 3.08(a), whether or not set forth in the FEI Disclosure Schedule, is referred to herein as a violation or breach "FEI CONTRACT".
(i) Each FEI Contract is valid and binding on FEI and any of or default under) any Contract to which it its Subsidiaries that is a party thereto, as applicable, and is in full force and effect (except to the extent such contract has expired or by which it or any terminated according to its terms), (ii) FEI and each of its properties or assets is boundSubsidiaries has in all material respects performed all obligations required to be performed by it to date under each FEI Contract, except for violationswhere such noncompliance, breaches or defaults that either individually or in the aggregate have not had and aggregate, would not reasonably be expected to have a Material Adverse Effect on FEI, and (iii) neither FEI nor any of its Subsidiaries, knows of, or has received notice of, the Company. The Company existence of any event or one condition which constitutes, or, after notice or lapse of time or both, will constitute, a material default on the part of FEI or any of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelierunder any such FEI Contract, Ohioexcept where such default, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that either individually or in the aggregate have not had and aggregate, would not reasonably be expected to have a Material Adverse Effect on the CompanyFEI.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Fei Co)
Contracts. (a) Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof (copies of which have been made available to Parent), there is no Company Agreement (a) any of the benefits to any party of which will be materially increased, or the vesting of the material benefits to any party of which will be materially accelerated, by the occurrence of any of the transactions contemplated by this Agreement or (b) which, as of the date hereof, (i) Neither is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) involves aggregate expenditures in excess of $500,000, (iii) was not entered into in the ordinary course of business, (iv) that contains “take or pay” provisions applicable to the Company nor or any Company Subsidiary, (v) that contains any non-compete or exclusivity provisions with respect to any line of its Subsidiaries business or geographic area with respect to the Company or any Company Subsidiary, or which restricts the conduct of any line of business by the Company or any Company Subsidiary or any geographic area in which the Company or any Company Subsidiary conducts business, or (vi) which would prohibit or materially delay the consummation of the transactions contemplated by this Agreement. Each contract of the type described above in Section 5.13, whether or not set forth in Section 5.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract.” Each Company Material Contract is valid and binding on the Company and each Company Subsidiary party thereto and, to the knowledge of the Company, each other party thereto, as applicable, and in full force and effect (except that (x) such enforcement may be subject to applicable bankruptcy, insolvency or other similar laws, now or hereafter in effect, affecting creditors’ rights generally and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought), and the Company and each Company Subsidiary has performed in all material respects all obligations required to be performed by it under each Company Material Contract and, to the knowledge of the Company, each other party to 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, individually or in the aggregate, be reasonably expected to be material to the Company and the Company Subsidiaries, taken as a whole. None of the Company or any Company Subsidiary knows of, or has received notice of, any violation or breach of or in default under (nor does there exist or any condition that upon which with the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Company Material Contract to which it is a party or by which it or any of its properties or assets is bound, except for violations, breaches violations or defaults that would not, individually or in the aggregate have not had and would not aggregate, be reasonably be expected to to, (1) prevent or materially delay consummation of the Merger or any of the other transactions contemplated by this Agreement, or (2) have a Company Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the CompanyEffect.
(iib) Except The Company has delivered or made available to Parent or provided 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 5.13 of the Company Disclosure Schedule, which are not filed in unredacted form as exhibits to the Company Filed SEC Documents, Documents and the Company Material Contracts required to be disclosed in Section 3.01(j)(ii) 5.13 of the Company Disclosure Schedule sets forth a filed as exhibits to the Company SEC Documents are true and complete list as copies of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreementsuch contracts.
Appears in 1 contract
Contracts. (i) Neither As of the Company nor any of its Subsidiaries is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party or by which it or any of its properties or assets is bounddate hereof, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts as filed in unredacted form as exhibits to the Company Filed SEC DocumentsS-1, or as disclosed in Section 3.01(j)(ii) 4.13 of the Company Disclosure Schedule sets forth a true and complete list as Schedule, none of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party to or bound by any Contract that (including 1) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (2) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company or any of its Subsidiaries, or which restricts the conduct of any line of business by the Company or any of its Subsidiaries or any geographic area in which the Company or any of its Subsidiaries may conduct business, in each case in any material respect or (3) which would prohibit or materially delay the consummation of the Merger or any of the transactions contemplated by this Agreement. As of the date hereof, each Contract of the type described in this Section 4.13, whether or not set forth in Section 4.13 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract.” Each Company Material Contract is valid and binding on the Company and each of its Subsidiaries party thereto and, to the Company’s knowledge, each other party thereto, and in full force and effect, and the Company and each of its Subsidiaries has in all amendments and modifications thereto); respects performed all obligations required to be performed by it to the date hereof under each Company Material Contract and
(D) , to the Company’s knowledge, each other party to each Company Material Contract has in all loan agreementsrespects performed all obligations required to be performed by it under such Company Material Contract, credit agreementsexcept as would not, notesindividually or in the aggregate, debentureshave a Material Adverse Effect. As of the date hereof, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness none of the Company or any of its Subsidiaries is outstanding has received any written notice of any violation or may be incurred and all guarantees default under (or any condition which with the passage of time or the giving of notice would cause such a violation of or by the default under) any Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this AgreementMaterial Contract.
Appears in 1 contract
Sources: Merger Agreement (Corgentech Inc)
Contracts. (i) Neither Each of the Material Contracts is valid and binding on the Company nor and each of its Subsidiaries that is a party thereto (but, in each case subject to the Bankruptcy and Equity Exception) and, to the Knowledge of the Company, each other party thereto and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect that would not, individually or in the aggregate, have a Company Material Adverse Effect. There is no default under any Material Contract by the Company, any of its Subsidiaries or, to the Knowledge of the Company, any Partner FC that is in violation a party thereto, and no event has occurred that with notice or breach of or in default under (nor does there exist any condition that upon the passage lapse of time or the giving of notice or both would cause such constitute a violation or breach default thereunder by the Company, any of or default under) its Subsidiaries or, to the Knowledge of the Company, any Contract to which it Partner FC that is a party thereto, or, to the Knowledge of the Company, give any Person the right to accelerate, modify, terminate or by which it or any of its properties or assets is boundobtain changed terms thereunder, except for violationsin each case as would not, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to aggregate, have a Company Material Adverse Effect on Effect. To the Knowledge of the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) all Contracts no counterparty to which the Company or any of its Subsidiaries is a partyMaterial Contract has threatened to, or that purports to be binding upon notified the Company, any of its Subsidiaries or any Partner FC in writing of its Affiliatesany intention to, that contain a covenant restricting cancel any such Material Contract or reduce the ability frequency or volume of business under such Material Contract compared to the frequency and volume of business during the twelve (12)-month period ended as of the date hereof, except as would not, individually or in the aggregate, have a Company or any Material Adverse Effect, except in the case of its Subsidiaries Material Contracts described in clause (or which, following the consummation ii) of the Mergerdefinition thereof, could restrict the ability of Parent or any of its Subsidiariesto which such exception shall not apply, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreement, no Physician Practice has requested any other material change or modification to the relationship between such Physician Practice and the Company or its Subsidiaries. Neither the Company nor any of its Subsidiaries has been notified that a third party payor intends to materially reduce or adversely modify any reimbursement rates, terms or conditions.
(ii) Except for any Material Contract where the terms thereof prohibit its disclosure to any third party, complete and correct copies of each Material Contract have been made available to Parent. Section 3.1(q)(ii) of the Company Disclosure Letter contains a correct and complete list, as of the date hereof, of each Material Contract which is not listed as an exhibit to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2011 filed with the SEC.
Appears in 1 contract
Contracts. Except as filed as exhibits to the Company SEC Filings filed prior to the date of this Agreement, or as disclosed in Section 3.12 of the Company Disclosure Letter, neither the Company nor any Company Subsidiary is a party to or bound by any Contract that (i) is a "material contract" (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) relates to the co-promotion or distribution of Enbrel, the manufacturing and supply by third parties of Enbrel, the out-license of Company Intellectual Property relating to Enbrel to third parties pursuant to which the Company currently receives royalties, or the in-license of intellectual property relating to Enbrel from third parties pursuant to which the Company currently pays royalties or (iii) limits or otherwise restricts the Company or any Company Subsidiary or that would, after the Effective Time, limit or restrict Parent or any of its Subsidiaries (including the Surviving Corporation and its Subsidiaries) or any successor thereto, from engaging or competing in any line of business or in any geographic area, which Contracts would be material to Parent and its Subsidiaries (determined after giving effect to the Merger). Each Contract of the type described in this Section 3.12, whether or not set forth in Section 3.12 of the Company Disclosure Letter, is referred to herein as a "Company Material Contract." Each Company Material Contract is valid and binding on the Company or a Company Subsidiary party thereto and, to the Company's Knowledge, each other party thereto, and is in full force and effect, and the Company and each of the Company Subsidiaries have performed in all material respects all obligations required to be performed by them to the date hereof under each Company Material Contract and, to the Company's Knowledge, each other party to each Company Material Contract has performed in all material respects all obligations required to be performed by it under such Company Material Contract, except, in each case, as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries is in Company Subsidiary knows of, or has received notice of, any violation or breach of or in default under (nor does there exist or any condition that upon which with the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Company Material Contract or any other Contract to which it is a party or by which it or any of its properties or assets is bound, except for violations, breaches violations or defaults that would not, individually or in the aggregate have not had and would not aggregate, reasonably be expected to have a Company Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the CompanyEffect.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Immunex Corp /De/)
Contracts. Except as filed as exhibits to the Parent SEC Filings filed prior to the date of this Agreement, or as disclosed in Section 4.13 of the Parent Disclosure Schedule, none of Parent or any Parent Subsidiary is a party to or bound by any contract (iA) Neither the Company nor any of its Subsidiaries 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 contemplated by this Agreement or any Ancillary Agreement, or the value of any of the benefits to any party of which will be calculated on the basis of any of the transactions contemplated by this Agreement or any Ancillary Agreement, or (B) which, as of the date hereof, (1) is a "material contract" (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (2) involves aggregate expenditures in excess of $250,000, other than contracts for the purchase of raw materials, components or manufacturing goods and contracts for the sale of Parent's products in the ordinary course of business, (3) involves annual expenditures in excess of $250,000 and is not cancelable within one year, other than contracts for the purchase of raw materials, components or manufacturing goods and contracts for the sale of Parent's products in the ordinary course of business, (4) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to Parent, any Parent Subsidiary or any of Parent's current or future affiliates, or which restricts the conduct of any line of business by Parent, any Parent Subsidiary or any of Parent's current or future affiliates or any geographic area in which Parent, any Parent Subsidiary or any of Parent's current or future affiliates may conduct business, in each case in any material respect, (5) involves the sale of a Parent Product to a customer or distributor and provides for a right of refund or return for any reason, including upon the occurrence of specified events or otherwise or (6) would prohibit or materially delay the consummation of the Merger or any of the transactions contemplated by this Agreement or any Ancillary Agreement. Each Contract of the type described in this Section 4.13, whether or not set forth in Section 4.13 of the Parent Disclosure Schedule, is referred to herein as a "Parent Material Contract." Each Parent Material Contract is valid and binding on Parent and each Parent Subsidiary party thereto and, to Parent's knowledge, each other party thereto, and in full force and effect, and Parent and each Parent Subsidiary has in all material respects performed all obligations required to be performed by it to the date hereof under each Parent Material Contract and, to Parent's knowledge, each other party to each Parent Material Contract has in all material respects performed all obligations required to be performed by it under such Parent Material Contract, except as would not, individually or in the aggregate, reasonably be expected to (1) prevent or materially delay consummation of the Merger, (2) otherwise prevent or materially delay performance by Parent or Merger Sub of any of their material obligations under this Agreement or any Ancillary Agreement to which it is a party, or (3) result in a Parent Material Adverse Effect. None of Parent or any Parent Subsidiary knows of, or has received notice of, any violation or breach of or in default under (nor does there exist or any condition that upon which with the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Parent Material Contract or any other contract to which it is a party or by which it or any of its properties or assets is bound, except for violations, breaches violations or defaults that would not, individually or in the aggregate have not had and would not aggregate, reasonably be expected to have a Material Adverse Effect on the Company. The Company (1) prevent or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the materially delay consummation of the Merger, could restrict the ability of (2) otherwise prevent or materially delay performance by Parent or Merger Sub of any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company their material obligations under this Agreement or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements Ancillary Agreement to which the Company or any of its Subsidiaries it is a party or (including all amendments and modifications thereto); and
(D3) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness result in a Parent Material Adverse Effect. Section 4.13 of the Company Parent Disclosure Schedule provides Parent's good faith estimate of the additional costs which will accrue to Parent under the contracts described in clause (A) of Section 4.13 as a result of the transactions contemplated by this Agreement or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Ancillary Agreement.
Appears in 1 contract
Contracts. Except as filed as exhibits to the Company SEC --------- Filings filed prior to the date of this Agreement, or as disclosed in Section 3.12 of the Company Disclosure Letter, neither the Company nor any Company Subsidiary is a party to or bound by any Contract that (i) is a "material contract" (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) relates to the co-promotion or distribution of Enbrel, the manufacturing and supply by third parties of Enbrel, the out-license of Company Intellectual Property relating to Enbrel to third parties pursuant to which the Company currently receives royalties, or the in-license of intellectual property relating to Enbrel from third parties pursuant to which the Company currently pays royalties or (iii) limits or otherwise restricts the Company or any Company Subsidiary or that would, after the Effective Time, limit or restrict Parent or any of its Subsidiaries (including the Surviving Corporation and its Subsidiaries) or any successor thereto, from engaging or competing in any line of business or in any geographic area, which Contracts would be material to Parent and its Subsidiaries (determined after giving effect to the Merger). Each Contract of the type described in this Section 3.12, whether or not set forth in Section 3.12 of the Company Disclosure Letter, is referred to herein as a "Company Material Contract." Each Company Material Contract is valid and binding ------------------------- on the Company or a Company Subsidiary party thereto and, to the Company's Knowledge, each other party thereto, and is in full force and effect, and the Company and each of the Company Subsidiaries have performed in all material respects all obligations required to be performed by them to the date hereof under each Company Material Contract and, to the Company's Knowledge, each other party to each Company Material Contract has performed in all material respects all obligations required to be performed by it under such Company Material Contract, except, in each case, as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries is in Company Subsidiary knows of, or has received notice of, any violation or breach of or in default under (nor does there exist or any condition that upon which with the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Company Material Contract or any other Contract to which it is a party or by which it or any of its properties or assets is bound, except for violations, breaches violations or defaults that would not, individually or in the aggregate have not had and would not aggregate, reasonably be expected to have a Company Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the CompanyEffect.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Amgen Inc)
Contracts. (iExcept for Contracts filed as exhibits to Dianon's most recent annual report on Form 10-K or the most recent report on Form 10-Q filed with SEC or as set forth in Section 3.1(o) Neither of the Company nor Dianon Disclosure Schedule, as of the date of this Agreement, none of Dianon or any of its Subsidiaries is a party to or bound by, and none of their properties or assets are bound by or subject to, any written or oral:
(i) Contract not made in violation or breach the ordinary course of or in default under business;
(nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default underii) any Contract pursuant to which it is a party or by which it Dianon or any of its properties Subsidiaries has agreed not to compete with any Person or to engage in any activity or business, or pursuant to which any benefit is required to be given or lost as a result of so competing or engaging;
(iii) Contract pursuant to which Dianon or any of its Subsidiaries is restricted in any material respect in the development, marketing or distribution of their respective products or services;
(iv) Contract with (A) any affiliate of Dianon or any of its Subsidiaries or (B) any current or former director or officer of Dianon or any of its Subsidiaries or of any affiliate of Dianon or any of its Subsidiaries or (C) any affiliate of any such Person (other than (w) contracts on arm's-length terms with companies whose common stock is publicly traded, (x) offer letters providing solely for "at will" employment, (y) invention assignment and confidentiality agreements relating to the assignment of inventions to Dianon or any of its Subsidiaries not involving the payment of money and (z) Dianon Benefit Plans referred to in Section 3.1(q));
(v) license or franchise granted by Dianon or any of its Subsidiaries pursuant to which Dianon or any of its Subsidiaries has agreed to refrain from granting license or franchise rights to any other Person;
(vi) Contract under which Dianon or any of its Subsidiaries has incurred any indebtedness that is currently owing or given any guarantee in respect of indebtedness, in each case having an aggregate principal amount in excess of $100,000, or granted any pledge, mortgage or other security interest in any property or assets of Dianon or any of its Subsidiaries;
(vii) Contract that is boundmaterial to the conduct of the business of Dianon and its Subsidiaries that requires consent, approval or waiver of or notice to a third party in the event of or with respect to the Merger or any of the other transactions contemplated by this Agreement, including in order to avoid termination of or a loss of material benefit under any such Contract;
(viii) Contract or other agreement, whether written or oral, that contains any guarantees as to Dianon or any of its Subsidiaries' future revenues;
(ix) Contract granting a third party any license to Intellectual Property Rights that is not limited to the internal use of such third party;
(x) Contract in respect of any joint venture, partnership, business alliance or similar arrangement between Dianon or any of its Subsidiaries and any third party;
(xi) Except for the Confidentiality Agreement, Contract providing for a "standstill" or for confidential treatment by Dianon or any of its Subsidiaries of third party information other than non-disclosure agreements and provisions entered into by Dianon in the ordinary course of business consistent with past practice;
(xii) Contract granting the other party to such Contract or a third party "most favored nation" status that, following the Merger, would in any way apply to UroCor or any of its Subsidiaries (other than Dianon and its Subsidiaries and their products or services); or
(xiii) Contract which (i) has aggregate future sums due from Dianon or any of its Subsidiaries in excess of $100,000 and is not terminable by Dianon or any such subsidiary for a cost of less than $100,000 or (ii) is otherwise material to the business of Dianon and its Subsidiaries, taken as a whole, as presently conducted or as proposed to be conducted. Each Contract of Dianon and its Subsidiaries is in full force and effect and is a legal, valid and binding agreement of Dianon or such Subsidiary and, to the knowledge of Dianon or such Subsidiary, of each other party thereto, enforceable against Dianon or any of its Subsidiaries, as the case may be, and, to the knowledge of Dianon, against the other party or parties thereto, in each case, in accordance with its terms, except for violations, breaches such failures to be in full force and effect or defaults enforceable that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the CompanyDianon. The Company or one Each of Dianon and its Subsidiaries has good performed or is performing all obligations required to be performed by it under its Contracts and marketable title is not (with or without notice or lapse of time or both) in breach or default in any respect thereunder, and, to the Company's manufacturing facility and executive and general offices located knowledge of Dianon or such subsidiary, no other party to any of its Contracts is (with or without notice or lapse of time or both) in Montpelierbreach or default in any respect thereunder except, Ohioin each case, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances such breaches that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the CompanyDianon.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreement.
Appears in 1 contract
Contracts. (ia) Neither the Company nor any of its Subsidiaries is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party or by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule 2.13 sets forth a true and complete correct list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) ofall:
(Ai) all Contracts that are material to the Company and its Subsidiaries, taken as a whole; and
(ii) Contracts to which the Company or any of its Subsidiaries is a party, to which the Company or that purports its Subsidiaries is subject or by which the Company or its Subsidiaries is bound, each with an annual cost to be binding upon the Company or its Subsidiaries of more than $25,000:
(A) requiring future expenditures by the Company or its Subsidiaries in excess of $50,000 or which might result in payments to the Company or its Subsidiaries in excess of $50,000;
(B) limiting the freedom of the Company to engage in any line of business or compete with any Person;
(C) with any stockholder, officer or director of the Company, any of its Subsidiaries or any Affiliate;
(D) relating to Intellectual Property;
(E) relating to Insurance Policies;
(F) relating to any Leased Real Property;
(G) relating to any Benefit Plan;
(H) relating to the disposition or acquisition of its Affiliates, that contain a covenant restricting the ability any material assets of the Company or its Subsidiaries;
(I) relating to the joint development of any products, services or processes; or
(J) not terminable by the Company or its Subsidiaries on or prior to the first anniversary date of this Agreement without penalty. All Contracts required to be listed on Schedule 2.13 are collectively referred to herein as “Material Contracts.” True and complete copies of each written Material Contract (or, in the case of any oral Material Contracts, as described in written summaries thereof) have been or will be delivered to Purchaser by the Company prior to the Closing Date.
(b) Except as set forth on Schedule 2.13:
(i) each of the Material Contracts is a valid, binding and enforceable agreement of the Company or its applicable Subsidiary and the other parties thereto and will, subject to the satisfaction of the conditions in Article VI, continue to be valid, binding and enforceable immediately after the Effective Date;
(ii) as of the date hereof, the Company and its applicable Subsidiaries have no reason to believe that they will not be able to fulfill in all material respects all of their respective obligations under the Material Contracts which remain to be performed after the date hereof;
(iii) there has not occurred any material default (or event which upon provision of notice or lapse of time or both would become such a default or right of termination) under any of the Material Contracts on the part of the Company or its Subsidiaries and, to the Company’s knowledge, (A) the other party thereto, and no such default, event or which, following the consummation right shall occur as a result of the Merger, could restrict and (B) there is no event or basis for any such default; and
(iv) the ability Material Contracts listed on Schedule 2.13 are all of Parent or any of its Subsidiaries, including the Contracts that are material to the Company and its Subsidiaries) to compete in any business , taken as a whole, or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this AgreementBusiness.
Appears in 1 contract
Contracts. (ia) Neither All Contracts, including amendments thereto, required to be filed as an exhibit to any report of Parent filed pursuant to the Company nor Exchange Act since January 1, 2019 of the type described in Item 601(b)(10) of Regulation S-K promulgated by the SEC have been filed. All such filed Contracts shall be deemed to have been made available to the Company.
(b) Except for this Agreement and Contracts described in Section 4.15(a), Section 4.15(b) of the Parent Disclosure Letter sets forth a list of all the Contracts to which Parent or any of its Subsidiaries is a party or by which Parent, any of its Subsidiaries or any of their respective properties or assets is bound as of the date of this Agreement (other than any Parent Plans, Parent Reinsurance Contracts, Parent Insurance Policies, and any contracts, agreements, instruments or commitments that relate to the acquisition, disposition or custody of any Parent Investment Assets) (the Contracts required to be listed in violation Section 4.15(b) of the Parent Disclosure Letter, together with the Contracts described in Section 4.15(a), collectively, “Parent Material Contracts”) that:
(i) are with an affiliate that would be required to be disclosed under Item 404(a) of Regulation S-K under the Exchange Act;
(ii) relate to the formation or breach management of any joint venture or partnership that is material to the business of Parent and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness of Parent or any of its Subsidiaries having an outstanding or committed amount in excess of $2,000,000, other than any Indebtedness between or among any of Parent and any of its Subsidiaries and other than any letters of credit;
(iv) have been entered into since January 1, 2019, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $2,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the investment policies and guidelines of Parent (the “Parent Investment Guidelines”), or of supplies, products, properties or other assets in the ordinary course of business;
(v) impose material exclusivity (other than non-competition covenants) or non-solicitation obligations on Parent or any of its Subsidiaries (including the Company or any of its Subsidiaries following the Effective Time), except for confidentiality or commercial agreements entered into in the ordinary course of business;
(vi) contain provisions that prohibit Parent or any of its Subsidiaries from competing in any material line of business or grant a right of exclusivity to any Person which prevents Parent or any Subsidiary of Parent from entering any material territory, market or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by Parent or any of its Subsidiaries on less than ninety (90) days’ notice without payment by Parent or any Subsidiary of Parent of any material penalty;
(vii) involve or would reasonably be likely to involve aggregate payments by or to Parent and/or its Subsidiaries in excess of $2,000,000 in any twelve (12)-month period, other than (x) Contracts that can be terminated by Parent or any of its Subsidiaries on less than ninety (90) days’ notice without payment by Parent or any Subsidiary of Parent of any material penalty or (y) commercial agreements entered into in the ordinary course of business;
(viii) include an indemnification obligation of Parent or any of its Subsidiaries with a maximum potential liability in excess of $5,000,000;
(ix) are an investment advisory or investment management agreements or arrangements to which Parent or any of its Subsidiaries is a party pursuant to which assets valued at $35,000,000 or greater are managed;
(x) are suretyship contracts, performance bonds, working capital maintenance agreements or other forms of guaranty agreements pursuant to which $1,000,000 or more is guaranteed, other than insurance or reinsurance contracts, letters of credit, surety bonds or other forms of security entered into in the ordinary course of business;
(xi) prohibit the payment of dividends or distributions in respect of the capital stock of Parent or any of its Subsidiaries, prohibit the pledging of the capital stock of Parent or any of its Subsidiaries or prohibit the issuance of any guarantee by Parent or any of its Subsidiaries; or
(xii) related to (A) development, assignment, or licensing of Intellectual Property or (B) information technology services (including support, maintenance and hosting agreements), in each case involving or reasonably likely to involve aggregate payments by or to Parent and/or its Subsidiaries in excess of $1,000,000 in any twelve (12)-month period.
(c) Each of the Material Contracts is valid and binding on Parent and each of its Subsidiaries to the extent Parent or such Subsidiary is a party thereto and, to the Knowledge of Parent, each other party thereto and is in full force and effect (subject to the Bankruptcy and Equity Exception), except for such failures to be valid and binding or to be in full force and effect which would not, individually or in the aggregate, reasonably be likely to have a Parent Material Adverse Effect. There is no breach or default under (nor does there exist any condition Parent Material Contract by Parent or any of its Subsidiaries and, to the Knowledge of Parent, no event has occurred that upon with the passage lapse of time or the giving of notice or both would cause such constitute a violation or breach of or default under) any Contract to which it is a party or thereunder by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person each case except as would not, individually or in any geographic area;
(B) all Contracts of the Company or aggregate, reasonably be likely to have a Parent Material Adverse Effect. Except as would not reasonably be likely to have a Parent Material Adverse Effect, neither Parent nor any of its Subsidiaries with has received written notice from any Affiliate of other party to a Parent Material Contract that such other party intends to terminate, not renew, or renegotiate the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries terms of any debt obligations of any other person such Parent Material Contract (other than except in accordance with the Company or any of its Subsidiariesterms thereof), including the respective aggregate principal amounts outstanding as of the date of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Sirius International Insurance Group, Ltd.)
Contracts. Schedule 6.05 of the Elan Disclosure Schedule sets forth a complete and correct list of: (ia) Neither each EPI Contract that relates to the Company nor any research, development, exploitation, licensing, use, importation, promotion, marketing, sale or distribution of its Subsidiaries is the Products and provides for aggregate annual payments, or has a value in violation excess, of [***]; Certain portions of this Exhibit have been omitted pursuant to a request for confidentiality. Such omitted portions, which are marked with brackets [ ] and an asterisk*, have been separately filed with the Commission. and (b) each other EPI Contract that, if such Contract were to be terminated or breach of otherwise no longer in full force and effect, would have or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party or by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the CompanyEffect. The Company or one of its Subsidiaries EPI has good and marketable title delivered to the Company's manufacturing facility Acquiror complete and executive and general offices located in Montpelier, Ohio, free and clear correct copies of all Liens except for Lienssuch EPI Contracts and all Assumed Contracts; including all amendments, defects in titleexhibits, easements, restrictive covenants appendices and similar encumbrances that individually or in the aggregate have not had and annexes thereto. Except as would not reasonably be expected to have a Material Adverse Effect on Effect, (a) each of the Company.
Assumed Contracts is in full force and effect and constitutes a legal, valid and binding agreement of EPI or its Affiliate, as applicable, and is enforceable in accordance with its terms by EPI or its Affiliate, as applicable, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting generally the enforcement of creditors’ rights and (ii) Except for Contracts filed the availability of equitable remedies (whether in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreementproceeding in equity or at law), and the Company has delivered to Parent prior to the date (b) EPI-and its Affiliates have performed all of this Agreement truetheir obligations under each Assumed Contract, complete and correct copies (including all amendments and modifications thereto) of:
(A) 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 neither EPI nor any of its Affiliates, that contain a covenant restricting nor, to the ability Knowledge of the Company EPI, any third party to any Assumed Contract, has violated or breached, or declared or committed any Default under, any Assumed Contract. Neither EPI nor any of its Subsidiaries (Affiliates have received any written notice or, to the Knowledge of EPI, any other communication regarding any actual, alleged, possible or whichpotential violation or breach of, following or default under, any Assumed Contract. EPI has delivered to the consummation Acquiror complete and correct copies of all Multi-Product Contracts, including all amendments, exhibits, appendices and annexes thereto; provided, that such copies may have been redacted to prevent disclosure of information not related to any of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this AgreementProducts.
Appears in 1 contract
Contracts. (iSchedule 3.1(s) Neither of the Company nor Disclosure Letter includes a complete and accurate list of all Material Contracts to which ▇▇▇▇▇▇▇▇▇ or any of its Subsidiaries subsidiaries is a party. All Material Contracts are in violation full force and effect, and ▇▇▇▇▇▇▇▇▇ or its subsidiaries are entitled to all rights and benefits thereunder in accordance with the terms thereof. ▇▇▇▇▇▇▇▇▇ has made available to Alamos for inspection true and completed copies of all Material Contracts, and all such Material Contracts have been provided to Alamos pursuant to its due diligence requests. All of the Material Contracts are valid and binding obligations of ▇▇▇▇▇▇▇▇▇ or its subsidiaries, as the case may be, enforceable in accordance with their respective terms, except as may be limited by bankruptcy, insolvency and other laws affecting the enforcement of creditors’ rights generally and subject to the qualification that equitable remedies may only be granted in the discretion of a court of competent jurisdiction. ▇▇▇▇▇▇▇▇▇ and its subsidiaries have complied in all material respects with all terms of such Material Contracts, have paid all amounts due thereunder, have not waived any rights thereunder and no material default or breach exists in respect thereof on the part of ▇▇▇▇▇▇▇▇▇ or in default under (nor does there exist any condition that upon of its subsidiaries or, to the passage knowledge of time ▇▇▇▇▇▇▇▇▇ or any of its subsidiaries, on the part of any other party thereto, and no event has occurred which, after the giving of notice or both the lapse of time or both, would cause constitute such a violation material default or breach or trigger a right of termination of any of the Material Contracts. As at the date hereof, neither ▇▇▇▇▇▇▇▇▇ nor any of its subsidiaries has received written notice that any party to a Material Contract intends to cancel, terminate or default under) any Contract otherwise modify or not renew such Material Contract, and to which it is a party or by which it the knowledge of ▇▇▇▇▇▇▇▇▇ or any of its properties or assets is boundsubsidiaries, except for violations, breaches or defaults that individually or no such action has been threatened. Except as set out in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(iiSchedule 3.1(s) of the Company Disclosure Schedule sets forth Letter, neither ▇▇▇▇▇▇▇▇▇ nor any of its subsidiaries is a true and complete list as party to any Material Contract that contains any non- competition obligation or otherwise restricts in any material way the business of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreementsubsidiaries.
Appears in 1 contract
Contracts. (ia) Neither the Company nor any of its Subsidiaries is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party or by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete Complete and correct copies of each of the Assumed Contracts other than purchase orders from suppliers and customers have been made available to the Buyer. None of the Assumed Contracts constitutes an agreement, contract, lease, option, license, commitment, instrument or any other binding obligation or arrangement (including all amendments and modifications theretooral or written) of:
(A) all Contracts by or to which the Company or Pet Business, any of its Subsidiaries the Purchased Assets or the Products are bound or subject and which are material to the conduct of the Pet Business (collectively, the "Contracts") which is a party, contract with any Affiliate of the Seller or that purports to be binding upon the Company, any of its Subsidiaries or any director, officer, stockholder or employee of the Seller or any of its Affiliates, that contain a covenant restricting the ability Subsidiaries.
(b) Each of the Company Assumed Contracts is a valid and binding obligation of the Seller or its Subsidiaries which is a party to such Assumed Contract and, to the knowledge of the Seller, of the other party thereto, and is in full force and effect and is enforceable by the Seller or any of its Subsidiaries (or which, following the consummation which is a party to such Assumed Contract in accordance with its terms. None of the Merger, could restrict Assumed Contracts shall as a result of the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete transactions contemplated by this Agreement be restricted in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any manner having a Material Adverse Effect. The Seller and each of its Subsidiaries with any Affiliate are not in material breach or default thereunder and, to the knowledge of the Company (Seller, no other than party to any of its Subsidiaries);
the Assumed Contracts is in breach or default thereunder. There have been no amendments of any material Assumed Contract. From June 30, 2001 through (Cand including) all joint venturethe date hereof, partnership or other similar agreements to no Person which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreementsto any Contract has informed the Seller in writing, credit agreementsnor to the Seller's knowledge, noteshas any such Person informed the Seller, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant that it intends to change its current relationship with the Pet Business in any manner which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreementwould have a Material Adverse Effect.
Appears in 1 contract
Sources: Asset Purchase Agreement (Igi Inc)
Contracts. (i) Neither the Company nor any of its Subsidiaries nor any other party is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) under any Contract contract to which it is a party or by which it the Company or any of its properties Subsidiaries are parties or assets is bound, except for violations, breaches or defaults that individually or in . Except as listed on Schedule 6.13,
(a) neither the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one nor any of its Subsidiaries has good is party to any (written or oral) stockholder agreement, employment agreement, advisors' agreement, consulting agreement or any similar agreement;
(b) neither the Company nor any of its Subsidiaries is a party to or bound by (i) any agreement or arrangement relating to Debt (it being understood that if any such agreement or arrangement exists, Schedule 6.13 shall set forth the outstanding princi- pal amount, interest rate, maturity and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear all other material terms of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
such Debt); (ii) Except for Contracts filed any agency, dealer, sales representative, marketing or other similar agreement; any reinsurance treaty or any facultative reinsurance contract (in unredacted form as exhibits each case applicable to the Company Filed SEC Documents, Section 3.01(j)(iiinsurance in force); (iii) any agreement containing "change in control" or similar provisions relating to change in control of the Company Disclosure Schedule sets forth a true and complete list as or any of its Subsidiaries; (iv) any powers of attorney, binding authorities or managing general agencies or other agents that have the power to bind on behalf of the date Company or any of this Agreementits Subsidiaries other than those made in the ordinary course of AIIC's business; (v) any third party collection agreements; or (vi) any agreements (other than insurance policies, and leases or other similar agreements issued or made by the Company has delivered to Parent prior to or any of its Subsidiaries in the date ordinary course of this Agreement true, complete and correct copies (including all amendments and modifications theretoits business) of:
(A) all Contracts pursuant to which the Company or any of its Subsidiaries is obligated to indemnify any other Person; and
(c) no agreement, contract or other document will require increased payments (in either amount or frequency) or changed terms as a partyresult of the transactions contemplated by this Agreement. The Company has heretofore furnished to ACGL complete and correct copies of the contracts, agreements and instruments listed on Schedule 6.13, each as amended or that purports modified to be binding upon the Companydate hereof (including any waivers with respect thereto, any the "Agreements"). Schedule 6.13 further contains a list of its Subsidiaries or all insureds the gross written premiums of which (together with the gross written premiums derived from any of its Affiliates, that contain a covenant restricting the ability ) represented more than (or are expected to represent more than) 2% of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete Company's consolidated gross written premiums in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreementsuch fiscal year.
Appears in 1 contract
Contracts. (ia) Neither the Company nor any of its Subsidiaries is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party or by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii3.20(a)(i) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including accurate list of all amendments contracts, agreements and modifications thereto) of:
(A) all Contracts other arrangements to which the Company or any of its Company's Subsidiaries is a party, party or that purports to be binding upon the by which Company, any of its Company's Subsidiaries or any of its Affiliatestheir respective assets are bound (excluding plans referred to in Sections 3.9 and 6.5 and leases referred to in Section 3.16) pursuant to which (i) any party thereto is entitled prospectively to receive in excess of $35,000, that contain a covenant restricting (ii) any party thereto has the ability right or option prospectively to order products or services the consideration for which would exceed $35,000, or (iii) payments are based on the profits or revenues of the Company or any of its Company's Subsidiaries (or which, following hereinafter referred to collectively as (the consummation "Contracts"). Each of the MergerContracts is in full force and effect and enforceable in accordance with its terms. Neither Company nor Company's Subsidiaries have received any formal or official notice (written or oral) of cancellation or termination of, could restrict or intent to cancel or terminate, any of the ability Contracts. With respect to each Contract which by its terms will terminate within one year of Parent the date hereof (or unless an option to extend such Contract is exercised), neither Company nor any of Company's Subsidiaries has received any formal or official notice (written or oral) that any such Contract will not be so renewed or that any such extension option will not be exercised. Except as set forth in Section 3.20(a)(ii) of the Company Disclosure Schedule, there exists no event of default or occurrence, condition or act on the part of Company or any of its SubsidiariesCompany's Subsidiaries or, including to the best knowledge of Company, on the part of the other parties to such Contracts which constitutes or would constitute (with notice or lapse of time or both) a breach of or default under any of the Contracts, or cause or permit acceleration of any obligation of Company or any of Company's Subsidiaries thereunder, which individually or in the aggregate would have a Material Adverse Effect. Except as set forth in Section 3.20(a) of the Company Disclosure Statement, no consent of any other party to the Contracts is required in connection with the execution, delivery and its Subsidiariesperformance of this Agreement or in order for the Contracts to remain in full force and effect following the Merger.
(b) None of Company nor any of Company's Subsidiaries is a party to any agreement which materially limits the freedom of Company or any of Company's Subsidiaries to compete in any line of business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreementperson.
Appears in 1 contract
Sources: Merger Agreement (Aseco Corp)
Contracts. (a) Except (i) Neither the Company nor any of its Subsidiaries is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party or by which it or any of its properties or assets is boundfor this Agreement, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for the Contracts filed in unredacted form no less than one (1) Business Day prior to the date hereof as exhibits to the SEC Reports and (iii) for the Company Filed SEC DocumentsPlans, Section 3.01(j)(ii3.8(a) of the Company Disclosure Schedule Letter sets forth a true and complete list forth, as of the date hereof, a true, correct and complete list of this Agreementany note, and the Company has delivered to Parent prior to bond, mortgage, indenture, deed of trust, contract, agreement, license, lease or other similar instrument or binding obligation (whether written or oral) (each, a “Contract”) which is in effect as of the date of this Agreement true, complete and correct copies hereof (including all amendments and modifications thereto) of:
(A) all Contracts or pursuant to which the Company or any of its Subsidiaries is a party, has any continuing obligations thereunder) and under which the Company or that purports to be binding upon the Company, any of its Subsidiaries is party or by which the Company or any of its AffiliatesSubsidiaries is bound, that:
(i) would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed by the Company on a Current Report on Form 8-K (provided that contain such Contracts need not be set forth on Section 3.8(a)(i) of the Company Disclosure Letter if true, correct and complete copies (subject to redaction) have been filed as exhibits to the SEC Reports prior to the date hereof);
(ii) contains covenants that (A) in the case of any Contract with any Producer, require the Company or any of its Subsidiaries to conduct business with any Person on a covenant restricting preferential, most favored nations or exclusive basis, and (B) in the ability case of any Contract other than those contemplated by the immediately preceding clause (A), (1) limit in any material respect the freedom of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete or engage in any line of business or with respect to any person class of products, or with any Person or (2) contain material exclusivity obligations or otherwise limit in any geographic area;
(B) all Contracts material respect the freedom or right of the Company or any of its Subsidiaries to research, develop, sell, distribute or manufacture any products or services for any other Person, including such provisions which require the Company or any of its Subsidiaries to conduct business with any Affiliate Person on a preferential, most favored nations or exclusive basis;
(iii) other than with respect to any partnership that is wholly owned by the Company or any of its Subsidiaries, is a joint venture, partnership or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(iv) other than (A) solely among wholly owned Subsidiaries of the Company or (B) endorsements for collection or deposit in the ordinary course of business, relates to indebtedness for borrowed money (whether incurred, assumed, guaranteed or secured by any asset) having an outstanding principal amount in excess of $5,000,000;
(v) constitutes any acquisition or divestiture Contract (whether by merger, consolidation, purchase or sale of stock or otherwise) of any interest in any Person or any business, line of business or division thereof, or a material portion of the assets of any Person pursuant to which the Company or any of its Subsidiaries has outstanding obligations in respect of any “earnout” or similar contingent or deferred payments involving more than $5,000,000 payable by the Company or its Subsidiaries aggregate over the term of the Contract from and after the date of this Agreement (excluding, for the avoidance of doubt, acquisitions or dispositions of Investment Assets, or of supplies, products, properties, or other than assets in the ordinary course of business or of supplies, 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 any of its Subsidiaries);
(Cvi) prohibits the payment of dividends or distributions in respect of the capital stock of the Company or any of its Subsidiaries or prohibits the pledging of the capital stock of the Company or any Subsidiary of the Company;
(vii) (A) a Reinsurance Contract involving assumed net reserves as of December 31, 2023 in excess of $7,500,000 or (B) a ceded Reinsurance Contract that, together with all joint ventureother ceded Reinsurance Contracts involving the same assuming reinsurer, partnership involves net reserves as of December 31, 2024 in excess of $7,500,000, or, in either case, is a Reinsurance Contract entered into after December 31, 2024 that would reasonably be expected to involve assumed or ceded net reserves in excess of such thresholds as of the date hereof;
(viii) grants any right of first refusal or right of first offer that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets;
(ix) requires or guarantees aggregate payments by or to the Company and/or any Subsidiary of the Company of more than $5,000,000 over the twelve (12) month period ending December 31, 2025;
(x) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligation of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $5,000,000;
(xi) involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other similar agreements Contract relating to a forward, swap or other hedging transaction, in each case, in excess of $5,000,000;
(xii) involves the settlement of any pending or threatened claim, action or proceeding that (A) requires payment obligations of the Company or any Subsidiaries after the date hereof in excess of $5,000,000 or (B) involves any Governmental Entity, other than claims settled under Insurance Contracts;
(xiii) under which the Company or a Subsidiary of the Company has directly or indirectly made any advance, loan, extension or credit to any Person (other than a wholly owned Subsidiary of the Company);
(xiv) is with a Governmental Entity;
(xv) is an investment advisory or investment management agreement or arrangement to which the Company or any of its Subsidiaries is a party (including all amendments or under which any Investment Asset is invested or managed or any third party has the right or power to make discretionary or investment decisions with respect to any Investment Asset and, in each case, that is material to the Company and modifications thereto); andits Subsidiaries, taken as a whole;
(Dxvi) all loan agreementsrelate to development or assignment of material Intellectual Property owned by the Company or any of its Subsidiaries, credit agreementsother than Intellectual Property assignment and invention assignment agreements assigning material Intellectual Property rights to the Company or any of its Subsidiaries entered into with employees or third-party contractors in the ordinary course of business;
(xvii) contain a license or grant of rights in, notes, debentures, bonds, mortgages, indentures and other Contracts to or under material Intellectual Property (collectively, "debt obligations"excluding (A) pursuant to which any indebtedness licenses granted or for the benefit of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or commercially available, “off-the-shelf” software available on standard terms for an annual payment of less than $5,000,000, (B) licenses of open source software, (C) non-exclusive licenses to Intellectual Property owned by the Company or any of its Subsidiaries entered into in the ordinary course of business, and (D) non-exclusive licenses that are incidental to Contracts under which the license to or from the Company or one of its Subsidiaries is not the primary purpose of such Contract); and
(xviii) any debt obligations of collective bargaining agreement or similar agreement with any labor unions, works councils, or other person (other than labor organizations representing any employees employed by the Company or any of its Subsidiaries. Each Contract required to be set forth in Section 3.8(a) of the Company Disclosure Letter or filed as an exhibit to the SEC Reports as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act (in each case, excluding any Company Plan) is referred to herein as a “Material Contract”.
(b) Each of the Material Contracts is valid and binding on the Company and each of its Subsidiaries party thereto and, to the Knowledge of the Company, each other party thereto, and is in full force and effect (and to the Knowledge of the Company is enforceable against each other party thereto), including subject to the respective aggregate principal amounts outstanding Bankruptcy and Equity Exception, except (i) to the extent that any Material Contract expires or terminates after the date hereof in accordance with its terms, and (ii) for such failures to be valid and 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. Except as does not have and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect (A) neither the Company nor any of its Subsidiaries has received written, or to the Knowledge of the Company, oral notice from any other party to a Material Contract that such other party intends to terminate, not renew, or renegotiate in any material respects the terms of any such Material Contract nor to the Knowledge of the Company, is any such party threatening in writing to do so and (B) there is no breach or default under any Material Contract by the Company or any of its Subsidiaries or, to the Knowledge of the Company, any other party thereto and no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a default thereunder by the Company or any of its Subsidiaries. The Company has made available to Parent true, correct and complete copies of all Material Contracts (or a written summary if not in writing) as of the date of this AgreementAgreement (including all amendments and supplements thereto), except for instances where the failure to be so complete is immaterial.
Appears in 1 contract
Sources: Merger Agreement (Proassurance Corp)
Contracts. (ia) Neither Except for this Agreement, as of the date hereof, none of the Company nor or any of its Subsidiaries is a party to or bound by (each such Contract, a "Material Contract"):
(i) any Contract that would be required to be filed by the Company as a "material contract" pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act (in violation each case, other than a Benefit Plan);
(ii) any Contract containing covenants binding upon the Company or breach any of its Subsidiaries that materially restricts the ability of the Company or any of its Subsidiaries to compete in any business or in any geographic area that is material to the Company and its Subsidiaries, taken as a whole, as of the date hereof except for any such Contract that may be canceled without material penalty by the Company or any of its Subsidiaries upon notice of seventy-five (75) days or less;
(iii) any Contract with respect to a material joint venture or material partnership agreement;
(iv) any Contract providing for Indebtedness of the Company or any of its Subsidiaries having an outstanding or committed amount in excess of $5,000,000, other than any Indebtedness between or among any of the Company and any of its wholly-owned Subsidiaries;
(v) any Contract limiting or prohibiting the payment of dividends or distributions in respect of the capital stock or other equity securities of the Company or any of its Subsidiaries, prohibiting the pledging of any capital stock or other equity securities of the Company or any of its Subsidiaries or prohibiting the issuance of guarantees by the Company or any of its Subsidiaries (other than pursuant to applicable Law or Order) except for any such Contract that may be canceled without material penalty by the Company or any of its Subsidiaries upon notice of seventy-five (75) days or less;
(vi) any Contract pursuant to which the Company (A) licenses any material Intellectual Property from any non-Affiliated Person (other than licenses for open source or off-the-shelf software pursuant to "click-wrap" or "shrink-wrap" agreements), or (B) licenses any material Intellectual Property to any non-Affiliated Person;
(vii) any Contract the principal purpose of which is to indemnify any current or former stockholder of the Company in respect of any potential Tax liabilities;
(viii) any collective bargaining agreement;
(ix) any Top 10 Program Reinsurance Contract; or
(x) any Contract relating to an acquisition, divestiture, merger or similar transaction and which contains representations, covenants, indemnities or other obligations (including indemnification, "earn-out" or other contingent obligations) that are still in effect (other than this Agreement and confidentiality agreements in connection with any potential acquisition, divestiture, merger or similar transaction).
(b) Each of the Material Contracts and each of the Contracts with a Top 10 Program Counterparty is valid and binding on the Company and each of its Subsidiaries party thereto and, to the Knowledge of the Company as of the date of this Agreement, each other party thereto and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. There is no default under (nor does there exist any condition Material Contract or any Contract with a Top 10 Program Counterparty by the Company or any of its Subsidiaries and no event has occurred that upon with the passage lapse of time or the giving of notice or both would cause such constitute a violation or breach of or default under) any Contract to which it is a party or thereunder by which it the Company or any of its properties or assets is boundSubsidiaries, in each case except for violationsas would not, breaches or defaults that individually or in the aggregate aggregate, reasonably be expected to have not had a Company Material Adverse Effect.
(c) Section 4.10(c) of the Company Disclosure Letter sets forth a list as of the date hereof of all material Contracts between the Company or one of its Subsidiaries, on the one hand, and CUMIS, on the other hand (each, a "CUMIS Material Contract"). Each CUMIS Material Contract is valid and binding on the Company and each of its Subsidiaries party thereto and, to the Knowledge of the Company as of the date of this Agreement, CUMIS, and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect that would not reasonably be expected to have a Company Material Adverse Effect on Effect. There is no default under any CUMIS Material Contract by the Company. The Company or one any of its Subsidiaries and no event has good and marketable title to occurred that with the Company's manufacturing facility and executive and general offices located lapse of time or the giving of notice or both would constitute a default thereunder by the Company or any of its Subsidiaries, in Montpeliereach case except as would not, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate aggregate, reasonably be expected to have not had a Company Material Adverse Effect.
(d) To the Knowledge of the Company, the expiration or termination (because of any change of control of the Company or otherwise) of all of the CUMIS Material Contracts in existence as of the date hereof and the loss of all benefits thereunder (such that the Company and its Subsidiaries have no on-going relationship with CUMIS), would not reasonably be expected to have a Material Adverse Effect material adverse effect on the CompanyLender Services Business.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreement.
Appears in 1 contract
Contracts. Except as disclosed in the VLI SEC Documents filed prior to the date hereof, or Section 4.2(j) of the VLI Disclosure Schedule:
(i) Neither the Company VLI nor any of its Subsidiaries is a party to or bound by any contract, arrangement, commitment or understanding (whether written or oral) (1), which, upon the consummation or VLI Unitholders Approval of the transactions contemplated by this Agreement, will (either alone or upon the occurrence of any additional acts or events) result in violation any payment (whether of severance pay or breach otherwise) becoming due from KPP, VLI, the Surviving Partnership or any of their respective Subsidiaries to any director, officer or employee thereof, (2) which is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K), or which, if entered into, amended, terminated or otherwise created or modified on or after the date of this Agreement, would be required to be disclosed on a Current Report on Form 8-K filed with the SEC, to be performed after the date of this Agreement that has not been filed or incorporated by reference in the VLI SEC Documents filed prior to the date of this Agreement, (3) which materially restricts the conduct of any line of business by VLI or upon consummation of the KPP Merger will materially restrict the ability of the VLI Entities to engage in any line of business, (4) relating to any outstanding commitment for any capital expenditure in excess of $10,000,000, (5) with any labor union or organization, (6) except as (a) reflected in the financial statements included in the VLI SEC Documents filed prior to the date hereof or (b) from the date hereof to the extent permitted under Section 5.2(h), indentures, mortgages, liens, promissory notes, loan agreements, guarantees or other arrangements relating to the borrowing of money by any of the VLI Entities or any of their Subsidiaries, (7) containing provisions triggered by change of control of any of the VLI Entities or any of their Subsidiaries or (8) in favor of directors or officers relating to employment or compensation or providing rights to indemnification, or (9) between any of the VLI Entities and any of their respective Affiliates. Each contract, arrangement, commitment or understanding of the type described in this Section 4.2(j), whether or not set forth in the VLI Disclosure Schedule or in default under such VLI SEC Documents, is referred to herein as a “VLI Contract”. True and complete copies of all such VLI Contracts have been made available by the VLI Entities to the Kaneb Entities.
(nor does there exist ii) (A) Each VLI Contract is valid and binding on VLI and any condition of its Subsidiaries that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party or by which it or any thereto, as applicable, and in full force and effect, (B) VLI and each of its properties or assets is boundSubsidiaries has performed all obligations required to be performed by it to date under each VLI Contract, except for violationswhere such noncompliance, breaches or defaults that either individually or in the aggregate have not had and aggregate, would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one VLI, and (C) neither VLI nor any of its Subsidiaries knows of, or has good and marketable title to received notice of, the Company's manufacturing facility and executive and general offices located in Montpelierexistence of any event or condition which constitutes, Ohioor, free and clear after notice or lapse of all Liens time or both, will constitute, a default on the part of VLI or any of its Subsidiaries under any such VLI Contract, except for Lienswhere such default, defects in title, easements, restrictive covenants and similar encumbrances that either individually or in the aggregate have not had and aggregate, would not reasonably be expected to have a Material Adverse Effect on the CompanyVLI.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreement.
Appears in 1 contract
Contracts. (i) Neither Except as disclosed in the Filed Company SEC Documents and except with respect to licenses and other agreements relating to intellectual property, which are the subject of Section 3.01(p), as of the date hereof, 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 and the rules and regulations promulgated thereunder. None of the Company, any of its Subsidiaries or, to the Knowledge of the Company, any other party thereto is in violation or breach of or in default under (nor does there exist any condition that which upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract Contract, to which it is a party or by which it or any of its properties or other assets is bound, except for violations, breaches violations or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on Effect. Neither the Company. The Company or one nor any of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) entered into any Contract with any Affiliate of the Company Disclosure Schedule sets forth a true and complete list that is in effect as of the date of this Agreement, and hereof other than Contracts that are disclosed in the Filed Company SEC Documents. Neither the Company has delivered nor any of its Subsidiaries is a party to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
or otherwise bound by any agreement or covenant (A) all Contracts restricting in any material respect the Company’s or its Subsidiaries’ ability to which compete, (B) restricting in any respect the Company’s Affiliates’ ability to compete (other than the Company’s Subsidiaries), (C) restricting in any material respect the research, development, distribution, sale, supply, license, marketing or manufacturing of products or services of the Company or any of its Subsidiaries is a partySubsidiaries, (D) restricting in any respect the research, development, distribution, sale, supply, license, marketing or that purports to be binding upon manufacturing of products or services of any of the Company’s Affiliates (other than the Company’s Subsidiaries) or (E) containing a right of first refusal, any right of first negotiation or right of first offer in favor of a party other than the Company or its Subsidiaries.
(ii) Each employee, contractor or consultant of the Company and its Subsidiaries who has proprietary knowledge of or any information relating to the material elements of its Affiliatesthe design, that contain a covenant restricting the ability manufacturing processes or the formulation of the products of the Company or any of its Subsidiaries has executed and delivered to the Company or the applicable Subsidiary of the Company an agreement or agreements, substantially in the form(s) set forth in Section 3.01(i)(ii) of the Company Disclosure Schedule, (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company is otherwise subject to restrictions) restricting such person’s right to use and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts disclose confidential information of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreement.
Appears in 1 contract
Contracts. (i) Except as set forth on (15) of the DoctorSurf Disclosure Schedule, none of DoctorSurf or any of its subsidiaries is a party to or bound by, and none of their properties or assets are bound by or subject to, any written or oral:
(1) Contract not made in the ordinary course of business;
(2) employment agreement that is not terminable at will by DoctorSurf or such subsidiary both without any penalty and without any obligation of DoctorSurf or any of its subsidiaries to pay severance or other amounts (including any bonus);
(3) any agreement under which it has created, incurred, assumed, or guaranteed indebtedness (including capitalized lease obligations) involving more than $10,000;
(4) any other agreement requiring the payment or receipt by DoctorSurf or a subsidiary of more than $10,000 annually;
(5) Contract pursuant to which DoctorSurf or any of its subsidiaries has agreed not to compete with any person or to engage in any activity or business;
(6) Contract which is material in any respect containing any provisions dealing with a "change of control" or similar event with respect to DoctorSurf or any subsidiary;
(ii) Each material contract of DoctorSurf and each of its subsidiaries is in full force and effect and is a legal, valid and binding agreement of DoctorSurf or such subsidiary and of each other party thereto, enforceable against DoctorSurf or any of its subsidiaries, as the case may be, and against the other party or parties thereto, in each case, in accordance with its terms. DoctorSurf and each of its subsidiaries has performed or is performing all material obligations required to be performed by it under each of its material contracts and is not (with or without notice or lapse of time or both) in breach or default in any material respect thereunder; and, to the knowledge of DoctorSurf or such subsidiary, no other party to any of its material contracts is (with or without notice or lapse of time or both) in breach or default in any material respect thereunder. Neither the Company DoctorSurf nor any of its Subsidiaries is in violation or breach subsidiaries knows of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party or by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect circumstances existing on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies that is reasonably likely to (including all amendments and modifications theretox) of:
materially adversely affect its ability to perform its obligations under any material contract or (Ay) 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 restricting materially adversely affect the ability of the Company or other party to any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) material contract to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt perform their obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreementthereunder.
Appears in 1 contract
Contracts. (a) Section 4.10(a) of the Inland Parties Disclosure Schedules contains a true and correct list, and the Inland Parties have delivered to American true and complete copies, of all Contracts of the following types: (i) Neither the Company nor any of its Subsidiaries is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it both American and the Business Manager are a party; (ii) any Contract between the Business Manager and any of its Affiliates; (iii) any other Contract entered into by the Business Manager or ILODGE on behalf of, or for the benefit of, American, not otherwise disclosed above; (iv) all currently effective written employment agreements with any Business Manager Employee or Specified Property Managers Employee; and (v) any Contract to which any Inland Party is a party that is material to the Business Manager Business or by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or otherwise was not entered into in the aggregate ordinary course of the Business Manager Business consistent with past practice.
(b) Except as set forth on Section 4.10(b) of the Inland Parties Disclosure Schedules, (i) all of the Contracts included in the Business Manager Acquired Assets, Assumed Property Managers Contracts and Assumed Liabilities are valid, binding and enforceable on the Inland Parties party thereto and is in full force and effect and no Person has alleged in writing that such Inland Party is or may be in material breach thereof or has or may have not had a material indemnification or similar Liability thereunder; and (ii) to the Knowledge of the applicable Inland Party, no condition exists and no event has occurred that has resulted or would not reasonably be expected to have result in a Material Adverse Effect on material breach of any Contract included in the Company. The Company Business Manager Acquired Assets, Assumed Property Managers Contracts or one of its Subsidiaries has good and marketable title Assumed Liabilities by the Inland Parties party thereto or, to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) Knowledge of the Company Disclosure Schedule sets forth a true and complete list as of the date of this AgreementInland Parties, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company party thereto and no party thereto has terminated or threatened in writing to terminate or requested in writing any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this Agreementmaterial modification or waiver thereof.
Appears in 1 contract
Sources: Master Modification Agreement (Inland American Real Estate Trust, Inc.)
Contracts. (i) Neither the Company nor any of its Subsidiaries is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party or by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii3.16(a) of the Company Disclosure Schedule sets forth a true and complete list Letter lists as of the date of this Agreementhereof, and the Company has delivered made available to Parent prior to the date of this Agreement and Merger Sub (or outside counsel) true, correct and complete and correct copies of, all contracts, agreements, commitments, arrangements, licenses (including all amendments with respect to Intellectual Property), leases (including with respect to personal property) and modifications thereto) of:
(A) all Contracts other instruments to which the Company or any of its Subsidiaries is a party, party or that purports to be binding upon by which the Company, any of its Subsidiaries or any of its Affiliates, their respective properties or assets is bound that:
(i) would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed by the Company on a Current Report on Form 8-K or that contain if terminated or subject to a covenant restricting default by any party thereto would reasonably be expected to have a Material Adverse Effect;
(ii) contains covenants that limit the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict or purports to restrict the ability of Parent the Surviving Corporation or any of its Subsidiaries, including the Company and its SubsidiariesParent): (A) to compete in any business or with any person Person or in any geographic area;
area or to sell, supply or distribute any service or product (including any non-compete, exclusivity or “most-favored nation” provisions), (B) all Contracts to purchase or acquire an interest in any other entity, except, in each case, for any such contract that may be canceled without notice or penalty or other liability of the Company or any of its Subsidiaries with upon notice of 60 days or less or (C) to enforce its rights under any Affiliate of the Company (other than contract, agreement or applicable Law, including any of its Subsidiaries)covenant not to ▇▇▇;
(Ciii) all provides for or governs the formation, creation, operation, management or control of any partnership or joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and;
(Div) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts involves (collectively, "debt obligations"A) pursuant to which any indebtedness of the Company use or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or license by the Company or any of its Subsidiaries of any debt obligations of any other person Intellectual Property owned by a third party (other than off-the-shelf or commercially available software), including any Intellectual Property used in any Company product (“Licensed Intellectual Property”) or (B) the joint development of products or technology with a third party;
(v) involves the license by the Company or any of its SubsidiariesSubsidiaries of any of its Intellectual Property to any third party (other than as ancillary to a sale of products to customers, but including any Intellectual Property used in any Company product);
(vi) contains a covenant not to ▇▇▇ with a third party;
(vii) contains a cross-license of Intellectual Property with a third party;
(viii) involves any exchange traded or over the counter swap, forward, future, option, cap, floor or collar financial contract, or any other interest rate or foreign currency protection contract;
(ix) other than solely among wholly owned Subsidiaries of the Company, relates to (A) indebtedness or (B) conditional sale arrangements, or the sale, securitization or servicing of loans or loan portfolios;
(x) involves the acquisition or disposition, directly or indirectly (by merger or otherwise), of a business or capital stock or other equity interests of another Person;
(xi) by its terms calls for aggregate payments by the Company and its Subsidiaries or for the Company or any of its Subsidiaries under such contract of more than $100,000 in any one (1) year (including by means of royalty payments) other than contracts made in the respective aggregate principal amounts outstanding as ordinary course of business consistent with past practice;
(xii) is with respect to any acquisition pursuant to which the Company or any of its Subsidiaries has (x) any continuing indemnification obligations or (y) any “earn-out”, “milestone” or other contingent payment obligations;
(xiii) involves the supply of material components, materials, services or products to the Company, including without limitation, any tissues or donors or services related thereto;
(xiv) relates to the sale, distribution or marketing of any of the date Company’s products or services;
(xv) relates to the sale, distribution or marketing by the Company of this Agreementany third party’s products;
(xvi) is with a group purchasing organization (GPO), integrated delivery network (IDN) or other similar organization or network;
(xvii) is with a Governmental Entity or Government Official;
(xviii) is with a health care provider or health care professional; or
(xix) is entered into between any director or executive officer of the Company (or any of their Affiliates or Associates), on the one hand, and the Company or a Subsidiary of the Company, on the other hand. Each contract of the type described in clauses (i) through (xix) above is referred to herein as a “Material Contract”.
Appears in 1 contract
Sources: Merger Agreement (Osteotech Inc)
Contracts. Schedule 6.05 of the Elan Disclosure Schedule sets forth a complete and correct list of: (ia) Neither each EPI Contract that relates to the Company nor any research, development, exploitation, licensing, use, importation, promotion, marketing, sale or distribution of its Subsidiaries is the Products and provides for aggregate annual payments, or has a value in violation excess, of $25,000; 23 Certain portions of this Exhibit have been omitted pursuant to a request for confidentiality. Such omitted portions, which are marked with brackets [ ] and an asterisk*, have been separately filed with the Commission. and (b) each other EPI Contract that, if such Contract were to be terminated or breach of otherwise no longer in full force and effect, would have or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it is a party or by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the CompanyEffect. The Company or one of its Subsidiaries EPI has good and marketable title delivered to the Company's manufacturing facility Acquiror complete and executive and general offices located in Montpelier, Ohio, free and clear correct copies of all Liens except for Lienssuch EPI Contracts and all Assumed Contracts; including all amendments, defects in titleexhibits, easements, restrictive covenants appendices and similar encumbrances that individually or in the aggregate have not had and annexes thereto. Except as would not reasonably be expected to have a Material Adverse Effect on Effect, (a) each of the Company.
Assumed Contracts is in full force and effect and constitutes a legal, valid and binding agreement of EPI or its Affiliate, as applicable, and is enforceable in accordance with its terms by EPI or its Affiliate, as applicable, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting generally the enforcement of creditors’ rights and (ii) Except for Contracts filed the availability of equitable remedies (whether in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreementproceeding in equity or at law), and the Company has delivered to Parent prior to the date (b) EPI-and its Affiliates have performed all of this Agreement truetheir obligations under each Assumed Contract, complete and correct copies (including all amendments and modifications thereto) of:
(A) 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 neither EPI nor any of its Affiliates, that contain a covenant restricting nor, to the ability Knowledge of the Company EPI, any third party to any Assumed Contract, has violated or breached, or declared or committed any Default under, any Assumed Contract. Neither EPI nor any of its Subsidiaries (Affiliates have received any written notice or, to the Knowledge of EPI, any other communication regarding any actual, alleged, possible or whichpotential violation or breach of, following or default under, any Assumed Contract. EPI has delivered to the consummation Acquiror complete and correct copies of all Multi-Product Contracts, including all amendments, exhibits, appendices and annexes thereto; provided, that such copies may have been redacted to prevent disclosure of information not related to any of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of the date of this AgreementProducts. Section 6.06.
Appears in 1 contract
Sources: Asset Purchase Agreement
Contracts. (a) Section 3.11(a) of the Company Disclosure Letter sets forth a true and complete list, as of the date hereof, of (i) Neither each of the Contracts to which the Company nor or any of its Subsidiaries is in violation or breach of or in default under (nor does there exist any condition that upon the passage of time or the giving of notice or both would cause such a violation or breach of or default under) any Contract to which it Company Subsidiary is a party or by which it the Company or any Company Subsidiary or any of their assets or businesses are bound (and any amendments, supplements and modifications thereto) and (ii) to the Knowledge of the Company, each of the Contracts which AmRisc or any of its properties Affiliates has entered into on behalf of, or assets is boundin respect of, business written on behalf of the Company or any Company Subsidiary, in each case, excluding insurance contracts or policies which AmRisc or any of its subsidiaries entered into on behalf of, or in respect of, business written on behalf of the Company or any Company Subsidiary in the Ordinary Course of Business.
(b) To the Knowledge of the Company, all Contracts set forth or required to be set forth in Section 3.11(a) of the Company Disclosure Letter (collectively, the “Company Contracts”) are valid, binding and in full force and effect and are enforceable by the Company or the applicable Company Subsidiary (or in the case of Contracts described in Section 3.11(a)(ii), AmRisc) in accordance with their terms, except as limited by Laws affecting the enforcement of creditors’ rights generally, by general equitable principles or by the discretion of any Governmental Entity before which any Proceeding seeking enforcement may be brought and except for violationssuch failures to be valid, breaches binding, in full force and effect or defaults that enforceable that, individually or in the aggregate aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect on the CompanyEffect. The Company or one of its Subsidiaries the applicable Company Subsidiary has good and marketable title (or, to the Knowledge of the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had case of Contracts described in Section 3.11(a)(ii), AmRisc and would not reasonably its Affiliates have) performed all material obligations required to be expected performed by it (or them, as applicable) under the Company Contracts, and it is (or, to have a Material Adverse Effect on the Knowledge of the Company.
, in the case of Contracts described in Section 3.11(a)(ii), AmRisc and its Affiliates are) not (iiwith or without notice or lapse of time, or both) Except for Contracts filed in unredacted form as exhibits breach or default in any material respect thereunder and, to the Knowledge of the Company, no other party to any Company Filed SEC DocumentsContract is (with or without notice or lapse of time, Section 3.01(j)(iior both) in breach or default in any material respect thereunder. Since January 1, 2015, none of the Company Disclosure Schedule sets forth a true and complete list as or any of the Company Subsidiaries (or, to the Knowledge of the Company, AmRisc or any of its Affiliates) has received written notice of any actual or alleged violation of, or failure to comply with, any term or requirement of any Company Contract. As of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) 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 restricting the ability none of the Company or any of its the Company Subsidiaries (or whichor, following to the consummation Knowledge of the MergerCompany, could restrict the ability of Parent AmRisc or any of its SubsidiariesAffiliates) has received any written notice of a threatened or actual termination, including cancellation, material limitation of, or material adverse modification or change in, any Company Contract or the Company and its Subsidiaries) to compete in business relationship of the Company, any business or with any person or in any geographic area;
(B) all Contracts of the Company Subsidiaries, AmRisc or any of its Subsidiaries Affiliates with any Affiliate one or more of the counterparties thereto. True and complete copies of all Company (other than any of its Subsidiaries);
(C) Contracts, together with all joint ventureamendments, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments supplements and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant thereto have been made available to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding as of Parent before the date of this Agreementhereof.
Appears in 1 contract
Contracts. (a) As of the date of this Agreement, none of the Company or any Company Subsidiary is a party to any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act (a “Filed Company Contract”) that has not been so filed.
(b) Section 3.14(b) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a true and complete list, and the Company has made available to Parent true and complete copies, of:
(i) Neither each Contract that (A) restricts in any material respect the ability of the Company nor or any Company Subsidiaries to compete in any line of business or geographic area and that is material to the Company and the Company Subsidiaries, taken as a whole, (B) materially limits the right of the Company or any Company Subsidiary pursuant to any “most favored nation” or “exclusivity” provisions, except for Contracts entered into in the ordinary course of business between the Company or any Company Subsidiary with suppliers, distributors, customers or sales representatives or (C) contains provisions described in clauses (A) and (B) that would bind Parent and its Affiliates;
(ii) each Contract pursuant to which any Indebtedness (other than any Indebtedness described in clause (iv) of the definition of Indebtedness and Indebtedness solely among the Company and/or any of the wholly owned Company Subsidiaries) of the Company or any of the Company Subsidiaries in a principal amount of more than $10,000,000 individually and $25,000,000 in the aggregate, is outstanding or may be incurred by its terms;
(iii) excluding individual purchase orders, each Contract exceeding $10,000,000 on an individual basis by total revenue with any of the top ten (10) customers of the Company and the Company Subsidiaries, taken as a whole, determined on the basis of total revenue of the Company and the Company Subsidiaries attributable to such customers pursuant to such Contracts in effect as of the date of this Agreement, for the twelve (12) months ended December 31, 2024, including each Contract with the Persons set forth in Section 3.14(b)(iii)(A) of the Company Disclosure Letter;
(iv) excluding individual purchase orders, each Contract with a Top Vendor exceeding $10,000,000;
(v) each material partnership, joint venture or similar Contract to which the Company or any of the Company Subsidiaries is a party relating to the formation, creation, operation, management or control of any partnership or joint venture or to the ownership of any equity interest in violation any Person (other than the wholly owned Company Subsidiaries);
(vi) each Contract between the Company or breach any Company Subsidiary, on the one hand, and, on the other hand, any (A) present executive, officer or director 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 hereof or (C) to the Knowledge of the Company, any affiliate of any such officer, director or owner (other than the Company or any of the Company Subsidiaries) (each such transaction among such Persons, an “Interested Party Transaction”);
(vii) each Contract (A) relating to the disposition or acquisition by the Company or any of the Company Subsidiaries, with obligations remaining to be performed or liabilities continuing after the date of this Agreement, in default under each case, which are reasonably expected to be greater than $5,000,000, of any business or any assets or (nor does there exist B) pursuant to which the Company or any condition of the Company Subsidiaries will acquire any ownership interest in any other Person for aggregate consideration of greater than $5,000,000;
(viii) each Collective Bargaining Agreement;
(ix) each Contract that upon is an agreement in settlement of a dispute or conciliation or similar Contract, in each case, that imposes any material obligation on the passage Company or any of time the Company Subsidiaries after the date of this Agreement, except for ordinary course settlements that result in amendments to Contracts to which the Company or any Company Subsidiary has such continuing obligations;
(x) each Government Contract that is currently in performance or that has not been closed out with a total contract value in excess of $10,000,000; and
(xi) each Contract to which the giving Company or any Company Subsidiary is a party that could reasonably be expected to involve aggregate payments during calendar year 2024 or any subsequent 12-month period of at least $10,000,000 and which is not terminable by either party on less than 60 days’ written notice without material penalty. Notwithstanding the foregoing, the following Contracts shall not be required to be listed on Section 3.14(b) of the Company Disclosure Letter, shall not be required to be made available to Parent pursuant to this Section 3.14(b), and shall not be deemed a “Material Contract” for any purposes hereunder (whether or both would cause such not a violation or breach of or default underFiled Company Contract): (1) any Company Benefit Plan, (2) any Contract solely between the Company, on the one hand, and one or more Company Subsidiaries, on the other hand, or solely between one or more Company Subsidiaries, and (3) any Real Estate Leases, which are the subject of Section 3.16 (any such Contract in clauses (1), (2) or (3), an “Excluded Contract”). Each Contract (w) that is an IP Contract, (x) listed in Section 3.14(b) of the Company Disclosure Letter, (y) required to which it be listed in Section 3.14(b) of the Company Disclosure Letter by this Section 3.14(b) or (z) that is a party or by which it or Filed Company Contract, in each case, other than any of its properties or assets Excluded Contract, is boundreferred to herein as a “Material Contract.”
(c) Except for matters which, except for violations, breaches or defaults that individually or in the aggregate aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect on Effect, (i) each Material Contract is a valid, binding and legally enforceable obligation of the Company. The Company or one of its Subsidiaries has good and marketable title the Company Subsidiaries, as the case may be, and, to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear Knowledge of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
, of the other parties thereto, except, in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Laws affecting creditors’ rights generally and by general principles of equity; (ii) Except for Contracts filed each such Material Contract is in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(iifull force and effect; and (iii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) 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 restricting the ability none of the Company or any of its the Company Subsidiaries is (with or whichwithout notice or lapse of time, following or both) in breach or default under any such Material Contract and, to the consummation Knowledge of the MergerCompany, could restrict 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 ability case of Parent clauses (i) or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any debt obligations of any other person (other than the Company or any of its Subsidiariesii), including the respective aggregate principal amounts outstanding with respect to any Material Contract that expires by its terms (as in effect as of the date hereof) or which is terminated in accordance with the terms thereof by the Company in the ordinary course of this Agreementbusiness consistent with past practice in all material respects. As of the date hereof, except as has not been and would not, individually in the aggregate, be material to the Company and the Company Subsidiaries, taken as a whole, neither the Company nor any of Company Subsidiaries has (x) received any notice in writing from any Person that such Person intends to terminate, not renew, renegotiate, or claim a material breach under, any Material Contract or (y) waived, or failed to enforce, any of its material rights or benefits under any Material Contract.
Appears in 1 contract
Sources: Merger Agreement (Triumph Group Inc)
Contracts. (a) Except for (x) this Agreement, and (y) the Company Plans, Section 3.8(a) of the Company Disclosure Letter sets forth, as of the date hereof, a true, correct and complete list of any note, bond, loan, mortgage, indenture, contract, subcontract, agreement, lease or other similar instrument or binding obligation (for the avoidance of doubt, other than Licenses) (each, a “Contract”) which is in effect as of the date hereof (or pursuant to which the Company or any of its Subsidiaries has any continuing obligations as of the date hereof) and to which the Company or any of its Subsidiaries is party or by which the Company or any of its Subsidiaries is bound, that:
(i) Neither would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed by the Company on a Current Report on Form 8-K (provided, that such Contracts need not be set forth on Section 3.8(a)(i) of the Company Disclosure Letter if true, correct and complete and unredacted copies have been filed as exhibits to the SEC Reports prior to the date hereof);
(ii) contains covenants that (A) limit in any material respect the freedom of the Company or any of its Subsidiaries or their respective Affiliates to compete or engage in any line of business or with respect to any class of products or with any Person or in any geographical region or (B) contain “most favored nation” provisions, material exclusivity obligations or otherwise limit in any material respect the freedom or right of the Company or any of its Subsidiaries or their respective Affiliates to research, develop, sell, distribute or manufacture any products or services for any other Person or in any geographical region, in each case, that are material to the Company and its Subsidiaries, taken as a whole;
(iii) other than with respect to any partnership that is wholly owned by the Company or any of its Subsidiaries, is a joint venture, partnership or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(iv) contains minimum purchase conditions in excess of $25,000,000 with respect to inventory purchases by the Company or its Subsidiaries for resale, or in excess of $5,000,000 with respect to other purchase obligations by the Company or its Subsidiaries, or Contracts that contain covenants binding upon the Company or any of its Subsidiaries or any of their respective Affiliates that materially restrict, or purport to materially restrict, the purchasing relationships of the Company or its Subsidiaries or any of their respective Affiliates;
(v) other than solely among wholly owned Subsidiaries of the Company, relates to (i) indebtedness of the Company or its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) having an outstanding principal amount in excess of $10,000,000 or (ii) a Lien (other than Permitted Liens) on the assets of the Company or its Subsidiaries securing obligations with a principal amount in excess of $10,000,000;
(vi) constitutes any acquisition or divestiture Contract (whether by merger, consolidation, purchase or sale of stock or otherwise) of any interest in any Person or any business, line of business or division thereof, or a material portion of the assets of any Person pursuant to which the Company or any of its Subsidiaries has outstanding material obligations, including in respect of any “earnout” or similar contingent or deferred payments involving more than $5,000,000 in the aggregate payable by the Company or its Subsidiaries over the term of the Contract from and after the date of this Agreement (excluding, for the avoidance of doubt, acquisitions or dispositions of supplies, products, properties or other assets, in each case, in the ordinary course of business consistent with past practice, or of supplies, products or other assets, in each case, that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vii) is entered into outside the ordinary course of business that requires future expenditures or receipts by the Company or any of its Subsidiaries of more than $5,000,000 in any one (1)-year period that cannot be terminated on less than sixty (60) days’ notice without material payment or penalty;
(viii) is entered into with a Material Customer or a Material Supplier;
(ix) is entered into with a Governmental Entity, other than those pursuant to which the Company supplies goods or services in the ordinary course of business consistent with past practice and, with respect to the environmental matters, those that are not material;
(x) is a Contract creating a capital lease obligation in excess of $1,000,000;
(xi) is a Contract involving any resolution or settlement of any actual or threatened (in writing) Action involving the Company or any of its Subsidiaries involving (A) a payment in excess of $2,500,000 and entered into in the last five (5) years or (B) any material ongoing obligations yet to be performed or completed by or restrictions on the Company or any of its Subsidiaries;
(xii) is a Real Property Purchase Contract with respect to any Material Real Property;
(xiii) (A) contains a license or any other right to use or exploit any material Intellectual Property, excluding non-exclusive licenses for generally commercially available, off-the-shelf Software on standard terms with annual fees of less than $5,000,000 or (B) grants any Person a license or other right to use or exploit any material Company Owned Intellectual Property, excluding non-exclusive licenses granted in the ordinary course of business that are merely incidental to the primary purpose of the Contract; or
(xiv) prohibits the payment of dividends or distributions in respect of the capital stock of the Company or any of its Subsidiaries or prohibits the pledging of the capital stock of the Company or any Subsidiary of the Company. Each Contract required to be set forth in Section 3.8(a) of the Company Disclosure Letter or filed as an exhibit to the SEC Reports as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act (in each case, excluding any Company Plan) is referred to herein as a “Material Contract”.
(b) Each of the Material Contracts is valid and binding on the Company and each of its Subsidiaries party thereto and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, subject to the Bankruptcy and Equity Exception, except (i) to the extent that any Material Contract expires or terminates after the date hereof in accordance with its terms and (ii) for such failures to be valid and binding or to be in full force and effect that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect (A) neither the Company nor any of its Subsidiaries has received written or, to the Knowledge of the Company, oral notice from any other party to a Material Contract that such other party intends to terminate, not renew or renegotiate in any material respect the terms of any such Material Contract nor to the Knowledge of the Company, any such party is threatening in violation writing to do so and (B) each of the Company and its Subsidiaries has performed all obligations required to be performed by it to date, and there is no breach or breach default, under any Material Contract by the Company or any of its Subsidiaries or, to the Knowledge of the Company, any other party thereto and no event has occurred that with or in default under (nor does there exist any condition that upon without the passage lapse of time or the giving of notice or both would cause such constitute a violation or breach of or default under) any Contract to which it is a party or by which it or any of its properties or assets is bound, except for violations, breaches or defaults that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company. The Company or one of its Subsidiaries has good and marketable title to the Company's manufacturing facility and executive and general offices located in Montpelier, Ohio, free and clear of all Liens except for Liens, defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate have not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
(ii) Except for Contracts filed in unredacted form as exhibits to the Company Filed SEC Documents, Section 3.01(j)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, and the Company has delivered to Parent prior to the date of this Agreement true, complete and correct copies (including all amendments and modifications thereto) of:
(A) 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 restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of Parent or any of its Subsidiaries, including the Company and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(B) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(C) all joint venture, partnership or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments and modifications thereto); and
(D) all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts (collectively, "debt obligations") pursuant to which any indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or thereunder by the Company or any of its Subsidiaries Subsidiaries. The Company has made available to Parent true, correct and complete copies of any debt obligations of any other person all Material Contracts (other than the Company or any of its Subsidiaries), including the respective aggregate principal amounts outstanding a written summary if not in writing) as of the date of this AgreementAgreement (including all amendments and supplements thereto, other than amendments and supplements that are not ministerial or de minimis in nature).
Appears in 1 contract
Sources: Merger Agreement (ODP Corp)