Material Contracts. (a) Except for this Agreement, as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) that: (i) would be required to be filed by the Company as a “material contract” (as such term is defined in item 601(b)(10) of Regulation S-K of the SEC); (ii) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Company; (iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries; (iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million; (v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company; (vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries; (vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests; (viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP; (ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company or any of its Subsidiaries has any liability in excess of $100 million in any transaction or series of related transactions; (x) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or (xi) is a Contract required to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedules. (b) Each such Contract described in clauses (i) through (x) above is referred to herein as a “Material Contract”. Each Material Contract is a valid and legally binding obligation of the Company and its Subsidiaries as applicable and, to the knowledge of the Company, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parent.
Appears in 4 contracts
Sources: Merger Agreement (Anadarko Petroleum Corp), Agreement and Plan of Merger (Occidental Petroleum Corp /De/), Agreement and Plan of Merger (Anadarko Petroleum Corp)
Material Contracts. (a) Except for this Agreement, Section 6.19 of the Aon Disclosure Letter contains a complete and correct list, as of the date hereofof this Agreement, neither the Company nor of each Contract described below in this Section 6.19(a) under which Aon or any Aon Subsidiary has any current or future rights, responsibilities, obligations or liabilities (in each case, whether contingent or otherwise) or to which any of its Subsidiaries their respective properties or assets is a party subject, in each case as of the date of this Agreement (all Contracts of the type described in this Section 6.19(a) being referred to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (herein as the “ContractAon Material Contracts”) that:):
(i) any partnership, joint venture, strategic alliance or collaboration Contract which is material to Aon and its Subsidiaries, taken as a whole;
(ii) any Contract that (A) purports to materially limit (1) the material lines of business of Aon and its Subsidiaries (including, after the Effective Time, WTW and its Subsidiaries) or (2) the geographic area in which any of them may so engage in such business or (B) would require the disposition of any material assets or material line of business of Aon and its Subsidiaries (including, after the Effective Time, WTW and its Subsidiaries taken as a whole) as a result of the consummation of the Transactions;
(iii) each acquisition or divestiture Contract or licensing agreement that contains representations, covenants, indemnities or other obligations (including “earn-out” or other contingent payment obligations) that would reasonably be expected to result in the receipt or making of future payments in excess of $50 million in the twelve (12) month period following the date hereof;
(iv) each Contract relating to outstanding Indebtedness of Aon or its Subsidiaries for borrowed money or any financial guaranty thereof (whether incurred, assumed, guaranteed or secured by any asset) in an amount in excess of $50 million other than (A) Contracts solely among Aon and any wholly-owned Aon Subsidiary or a guarantee by Aon or an Aon Subsidiary of an Aon Subsidiary, (B) financial guarantees entered into in the ordinary course of business consistent with past practice not exceeding $50 million, individually or in the aggregate (other than surety or performance bonds, letters of credit or similar agreements entered into in the ordinary course of business consistent with past practice in each case to the extent not drawn upon), and (C) any Contracts relating to Indebtedness explicitly included in the consolidated financial statements in the Aon SEC Documents;
(v) each Contract (other than an Aon Benefit Plan) between Aon, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Aon Subsidiary) of Aon or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract (other than an Aon Benefit Plan) pursuant to which Aon has an obligation to indemnify such officer, director, Affiliate or family member;
(vi) any Contract (excluding licenses for commercially available computer software that are generally available on standard terms for fees of no more than $25 million annually or in the aggregate) under which Aon or any Aon Subsidiary is granted any license, option or other right or immunity (including a covenant not to be sued or right to enforce or prosecute any patents) with respect to any Intellectual Property of a third party, which Contract is material to Aon and the Aon Subsidiaries, taken as a whole;
(vii) any Contract (excluding licenses for commercially available computer software that are generally available on standard terms for fees of no more than $25 million annually or in the aggregate) under which Aon or any Aon Subsidiary has granted to a third party any license, option or other right or immunity (including a covenant not to be sued or right to enforce or prosecute any patents) with respect to any Intellectual Property rights (including any development thereof), which Contract is material to Aon and the Aon Subsidiaries, taken as a whole;
(viii) any shareholders, investors rights, registration rights or similar agreement or arrangement of Aon or any of its Significant Subsidiaries;
(ix) any Contract that relates to any swap, forward, futures, or other similar derivative transaction for hedging purposes with a notional value in excess of $100 million;
(x) any material collective bargaining agreement or other Contract with any labor union;
(xi) any Contract involving the settlement of any action or threatened action (or series of related actions) which will (A) involve payments after the date hereof of consideration in excess of $25 million or (B) impose material monitoring or reporting obligations to any other Person outside the ordinary course of business; and
(xii) any Contract not otherwise described in any other subsection of this Section 6.19(a) that would be required to be filed by the Company Aon as a “material contract” (as such term is defined in item Item 601(b)(10) of Regulation S-K of the SEC);.
(iib) includes Neither Aon nor any continuing Aon Subsidiary is in breach of or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with default under the acquisition or disposition by the Company or any of its Subsidiaries terms of any business which payment obligations are Aon Material Contract where such breach or default would reasonably be expected to be material to the Company;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (have, individually or in which Parent the aggregate, an Aon Material Adverse Effect. To the knowledge of Aon, as of the date hereof, no other party to any Aon Material Contract is in breach of or any of its Subsidiaries after default under the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition terms of any material assets Aon Material Contract where such breach or line of business of the Company default would reasonably be expected to have, individually or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant aggregate, an Aon Material Adverse Effect. Except as would not reasonably be expected to which have, individually or in the Company or any of its Subsidiaries has any liability in excess of $100 million in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedules.
(b) Each such Contract described in clauses (i) through (x) above is referred to herein as a “aggregate, an Aon Material Contract”. Each Adverse Effect, each Aon Material Contract is a valid and legally binding obligation of Aon or the Company and its Subsidiaries as applicable Subsidiary of Aon which is party thereto and, to the knowledge of the CompanyAon, of each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiaryeffect, in each case, except that (i) such enforcement may be subject to Creditorsapplicable bankruptcy, insolvency, examinership, fraudulent transfer, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ Rights, except as would not, individually or in the aggregate, rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be reasonably likely subject to have a Company Material Adverse Effect, equitable defenses and neither the Company nor any of its Subsidiaries, nor, to the knowledge discretion of the Company, court before which any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably proceeding therefor may be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parentbrought.
Appears in 4 contracts
Sources: Business Combination Agreement, Business Combination Agreement (Aon PLC), Business Combination Agreement (Willis Towers Watson PLC)
Material Contracts. (a) Except for this Agreement, the Company Benefit Plans and agreements filed as exhibits to the Company SEC Documents, as of the date hereofof this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) thatby:
(i) would be required to be filed by the Company as a any “material contract” (as such term is defined in item Item 601(b)(10) of Regulation S-K of the SEC);
(ii) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Company;
(iii) Contract that (A) limits in expressly imposes any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations restriction on the Company right or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare compete with any other person or pay dividends acquire or make distributions dispose of the securities of any other person or (B) contains an exclusivity or “most favored nation” clause that restricts the business of the Company or any of its Subsidiaries in respect of their capital stock, partner interests, membership interests or other equity interestsa material manner;
(viiiiii) is a material partnershipany mortgage, note, debenture, indenture, security agreement, guaranty, pledge or other agreement or instrument evidencing indebtedness for borrowed money or any guarantee of such indebtedness of the Company or any of its Subsidiaries in an amount in excess of $25 million;
(iv) any joint venture, partnership or limited liability company, joint venture company agreement or other similar agreement or arrangement Contract relating to the formation, creation, operation, management or control of any partnershipjoint venture, partnership or limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 millioncompany, other than with respect to any wholly-owned Subsidiary of such Contract solely between the Company and its Subsidiaries or wholly-owned Subsidiary of among the MLPCompany’s Subsidiaries;
(ixv) relates to any Contract expressly limiting or restricting the acquisition or disposition ability of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company or any of its Subsidiaries has to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the case may be;
(vi) any liability acquisition Contract that contains “earn out” or other contingent payment obligations, or remaining indemnity or similar obligations, that could reasonably be expected to result in payments after the date hereof by the Company or any of its Subsidiaries in excess of $100 million in any transaction or series of related transactions;25 million; and
(xvii) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required lease or sublease with respect to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedules.
(b) Each such Contract described in clauses (i) through (x) above is referred to herein as a “Material Contract”. Each Material Contract is a valid and legally binding obligation of the Company and its Subsidiaries as applicable and, to the knowledge of the Company, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to ParentLeased Real Property.
Appears in 4 contracts
Sources: Merger Agreement (SemGroup Corp), Agreement and Plan of Merger (Energy Transfer LP), Merger Agreement
Material Contracts. (ai) Except for this Agreement, as Sellers have provided to Buyer true and correct copies of the date hereof, neither following agreements (each a “Material Contract”) to which each of the Company nor any of and its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) thatparty:
(iA) would be required to be filed by any agreement for the purchase or sale of products or for the furnishing or receipt of services (1) which involves more than the sum of $10,000 or (2) in which each of the Company as or its Subsidiaries has granted “most favored nation” pricing provisions or marketing or distribution rights relating to any services, products or territory or has agreed to purchase a “material contract” minimum quantity of goods or services or has agreed to purchase goods or services exclusively from a certain party;
(as such term is defined in item 601(b)(10B) any agreement concerning the establishment or operation of Regulation S-K a partnership, joint venture or limited liability company;
(C) any agreement under which each of the SEC);
Company or its Subsidiaries has created, incurred, assumed or guaranteed (iior may create, incur, assume or guarantee) includes any continuing or other contingent payment obligations indebtedness (including any “earn-out” or indemnification capitalized lease obligations) arising or under which it has imposed (or may impose) any Encumbrance on any of its assets, tangible or intangible (excluding indebtedness and Encumbrances being paid off, terminated or otherwise satisfied in connection with the acquisition or Closing);
(D) any agreement for the disposition by the Company or any of its Subsidiaries of any significant portion of the assets or business which payment obligations are or would reasonably be expected to be material to the Company;
(iii) (A) limits in any material respect either the type of business in which each of the Company or its Subsidiaries (or other than sales of products in which Parent the Ordinary Course of Business) or any agreement for the acquisition of its Subsidiaries after the Effective Timeassets or business of any other entity (other than purchases of inventory or components in the Ordinary Course of Business);
(E) may engage any agreement concerning confidentiality or the manner or locations in which any of them may so engage in any business (including through “non-competition” solicitation;
(F) any employment agreement, consulting agreement, severance agreement (or “exclusivity” provisions)agreement that includes provisions for the payment of severance) or retention agreement;
(G) any agreement involving any current director, manager, officer, shareholder or member of each of the Company or its Subsidiaries;
(BH) would require the disposition of any material assets lease or line of business agreement under which each of the Company or its Subsidiaries oris the lessee of, after or holds or operates, any personal property owned by any other party, for which the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;annual rental exceeds $15,000;
(ivI) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money agreement that prohibits each of the Company or its Subsidiaries from freely engaging in business anywhere in the world;
(J) any Subsidiary distributor, sales representative, franchise or similar agreement to which each of the Company in excess or its Subsidiaries is a party or by which each of the Company or its Subsidiaries is bound; and
(K) any other agreement (or group of related agreements) either (A) involving more than $100 million 50,000 or (B) is a guarantee by not entered into in the Company or any Ordinary Course of its Subsidiaries of such indebtedness of any person other Business and involving more than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;10,000.
(vii) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary Each of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company or any of its Subsidiaries has any liability in excess made available to Buyer a complete and accurate copy of $100 million in any transaction each Material Contract (as amended to date). With respect to each Material Contract, and subject to applicable bankruptcy, insolvency, reorganization, moratorium or series other laws affecting generally the enforcement of related transactions;
(x) (A) is a material joint operating agreement (JOA) or (B) defines any material area creditors’ rights and subject to general principles of mutual interest (AMI); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedules.
(b) Each such Contract described in clauses equity: (i) through (x) above is referred to herein as a “Material Contract”. Each the Material Contract is a valid legal, valid, binding and legally binding obligation of the Company enforceable and its Subsidiaries as applicable and, to the knowledge of the Company, each other party thereto, and is in full force and effect and enforceable by against each of the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, to the Knowledge of any Seller or each of the Company or its Subsidiaries, against each other party thereto; and (ii) the Material Contract will continue to be legal, valid, binding and enforceable and in full force and effect against each of the Company or its Subsidiaries and against each other party thereto immediately following the Closing in accordance with the terms thereof as in effect immediately prior to the Closing. Neither each of the Company or its Subsidiaries nor, to the knowledge Knowledge of any Seller or each of the CompanyCompany or its Subsidiaries, any other party to a Material Contract party, is in breach or violation of any provision of, or in default under, any such Material Contract, and no event has occurred thatoccurred, is pending or, to the Knowledge of any Seller or each of the Company or its Subsidiaries, is threatened, which, after the giving of notice, with or without notice, lapse of time time, or bothotherwise, would constitute a breach or default by each of the Company or its Subsidiaries or any other party under such a breachMaterial Contract.
(iii) Each of the Company or its Subsidiaries is not party to any oral contract, violation agreement or defaultother arrangement that, except for breachesif reduced to written form, violations or defaults that would not, individually or in be required to provide under the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy terms of each Material Contract has previously been delivered to ParentSection 3(y).
Appears in 3 contracts
Sources: Share Purchase Agreement (Meiwu Technology Co LTD), Share Purchase Agreement (Meiwu Technology Co LTD), Share Purchase Agreement (Meiwu Technology Co LTD)
Material Contracts. (a) Except for For all purposes of and under this Agreement, as a “Parent Material Contract” shall mean, without duplication, any of the date hereof, neither the Company nor following to which Parent or any of its Subsidiaries is a party to or by which any assets of Parent or any of its Subsidiaries are bound by as of the date of this Agreement (other than (i) Contracts between or among the Company and one or more Subsidiaries, on the one hand, and Parent and one or more Affiliates, on the other hand and (ii) any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) that:Parent Benefit Plan):
(i) any Contract that would be required to be filed by the Company Parent as a “material contract” (as such term is defined in item 601(b)(10) of Regulation S-K pursuant to Item 4 of the SEC)Instructions to Exhibits of Form 20-F;
(ii) includes any continuing Contract (or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection group of related Contracts with the acquisition same Person or disposition its Affiliates), other than any Lessor Lease, Lessee Lease and any other lease, license or development, redevelopment, declaration, reciprocal easement or similar agreement or construction Contract or otherwise entered into in the ordinary course of business or any Contract relating to Indebtedness or derivatives, involving (A) the payment or receipt of amounts by the Company Parent or any of its Subsidiaries of more than $5,000,000 in the aggregate within the last twelve (12) months or (B) future payments of more than $5,000,000 that are conditioned on, in whole or in part, or required in connection with, the consummation of any business which payment obligations are or would reasonably be expected to be material to of the CompanyTransactions;
(iii) (A) limits any Contract relating to Indebtedness in excess of $5,000,000 or mortgaging, pledging or otherwise placing a Lien on any material respect either of the type assets of business in which the Company Parent or its Subsidiaries with a value in excess of $5,000,000, restricting the payment of dividends or other distributions of assets by any of Parent or its Subsidiaries or providing for the guaranty of Indebtedness of any Person in excess of $5,000,000;
(iv) any Contract that contains a put, call, right of first refusal or in similar right pursuant to which Parent or any of its Subsidiaries after the Effective Time) may engage could be required to purchase or the manner sell, as applicable, any equity interests or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition assets of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 millionPerson;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle wholly owned Subsidiary of Parent, any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture venture, strategic alliance or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or company, joint venture or strategic alliance, in which the Company ownseach case, directly that is material to Parent or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLPits Subsidiaries;
(ixvi) relates except for indemnification, compensation, employment or other similar arrangements between Parent or any of its Subsidiaries, on the one hand, and any current or former director or officer thereof, on the other hand, any Contract to which Parent or any of its Subsidiaries is a party that would be required to be disclosed pursuant to Item 7.B of Form 20-F;
(vii) any Contract containing a standstill or similar agreement pursuant to which Parent or any of its Subsidiaries’ has ongoing obligations to not acquire assets or securities of any other party and, to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products extent not entered into in the ordinary course of business consistent or in connection with past practice) pursuant to any Lessor Lease, Lessee Lease or other lease, license, services, development, redevelopment, construction or other commercial Contract, any Contract under which the Company Parent or any of its Subsidiaries has material ongoing indemnification obligations;
(viii) any liability Contract under which a sale of a majority of the consolidated assets of Parent and its Subsidiaries, taken as a whole, would require a payment by, result in excess a breach or constitute a default by, or result in the termination, acceleration or loss of $100 million any benefit of, Parent or any of its Subsidiaries;
(ix) any non-competition Contract or other Contract that (A) limits or purports to limit in any transaction material respect the type of business in which Parent or series its Subsidiaries (or, after the Merger Effective Time, Company or its Affiliates) may engage, or the manner or locations in which any of related transactionsthem may so engage in any business or (B) prohibits or materially limits the right of Parent or any of its Subsidiaries to use, transfer, license, distribute or enforce any of their respective Parent Intellectual Property, other than limitations on enforcement arising from nonexclusive licenses of Parent Intellectual Property entered into in the ordinary course of business;
(x) any swap, cap, floor, collar, futures contract, forward contract, option and any other derivative financial instrument, contract or arrangement, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, other than (Ai) is a material joint operating agreement (JOA) Contracts related to the purchase of raw materials or inventory in the ordinary course of business or (Bii) defines any material area Contracts relating to the hedging of mutual interest (AMI); orutility expenses;
(xi) any Contract pursuant to which Parent or any of its Subsidiaries is a party under which any third Person has granted to Parent or any of its Subsidiaries, or Parent or any of its Subsidiaries has granted to any third Person, any license, covenant or other rights to or under Intellectual Property (other than software license agreements for any third-party off-the-shelf generally commercially available software for no fee or an aggregate license fee of less than $5,000,000 per year);
(xii) any Contract required to be set forth on Section 3.21(a)(xithat provides for the acquisition or disposition, directly or indirectly (including by merger, purchase of equity, business combination or otherwise) of any real or personal property for aggregate consideration under such Contract in excess of $5,000,000 that is pending (other than the Company Disclosure Schedulesacquisition or disposition of assets in the ordinary course of business) or pursuant to which Parent or its Subsidiaries have continuing “earn-out” or similar contingent obligations relating to purchase price adjustments;
(xiii) any Contract relating to settlement of any administrative or judicial proceedings, in each case, individually in excess of $5,000,000 or which otherwise provides for equitable relief that imposes a material obligation or restrictions on Parent, under which there are outstanding obligations (including settlement agreements) of Parent or any of its Subsidiaries;
(xiv) any Lessor Lease providing for annual payments to Parent or any of its Subsidiaries in excess of $1,000,000 in aggregate annual base rent for calendar year 2018 and any Lessee Leases demising more than 10,000 square feet; and
(xv) any Collective Bargaining Agreement.
(b) Each True and complete copies of all such Contract Parent Material Contracts as described in clauses Section 4.12(a)(i) (including all exhibits and schedules thereto) have been (i) through publicly filed with the SEC and are publicly available as of the date hereof or (xii) above is referred made available to herein the Company.
(c) Except as would not have or result in a “Parent Material Contract”. Each Adverse Effect, (i) each Parent Material Contract is a valid and legally binding obligation on Parent (and/or each such Subsidiary of the Company and its Subsidiaries as applicable Parent party thereto) and, to the knowledge Knowledge of the CompanyParent, each other party thereto, and (ii) each Parent Material Contract is in full force and effect and (except for expiration thereof in the ordinary course in accordance with the terms thereof), enforceable by against Parent or each such Subsidiary of Parent party thereto, as the Company or the applicable Subsidiarycase may be, in each caseaccordance with its terms, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse EffectEnforceability Limitations, and (iii) neither Parent nor any of its Subsidiaries that is a party thereto, nor, to the Company nor Knowledge of Parent, any other party thereto, is in breach of, or default under, any such Parent Material Contract, and, to the Knowledge of Parent, no event has occurred that with notice or lapse of time or both would constitute such a breach or default thereunder by Parent or any of its Subsidiaries, noror, to the knowledge Knowledge of the CompanyParent, any other party to a thereto, or permit termination, material modification or acceleration by any third party thereunder. As of the date hereof, neither Parent nor any of its Subsidiaries has received any written notice of termination or cancellation under any Parent Material Contract is in or received any written notice of breach of or violation of any provision of, or in default under, under any Parent Material Contract, and no event Contract which breach has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or defaultnot been cured, except for breachesany termination, violations breach or defaults default that would not, individually not have or result in the aggregate, reasonably be expected to have a Company Parent Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parent.
Appears in 3 contracts
Sources: Merger Agreement (Brookfield Property Partners L.P.), Merger Agreement (Brookfield Asset Management Inc.), Merger Agreement (GGP Inc.)
Material Contracts. (a) Except for this the Transaction Agreements, the Development and License Agreement, as of the date hereofPatent Cooperation Agreement, neither the Company nor any of its Subsidiaries Stock Purchase Agreement, the Manufacturing and Supply Agreement and the Co-Existence Agreement, and the Contracts disclosed in Schedule 3.08, with respect to the Development Program, Aradigm is not a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) thatby:
(i) would be required to be filed by the Company as a “material contract” any lease (as such term is defined in item 601(b)(10) whether of Regulation S-K of the SECreal or personal property);
(ii) includes any continuing agreement for the sale or purchase of materials, supplies, goods, services, equipment or other contingent payment obligations assets providing for either (including any “earn-out” A) annual payments by Aradigm of $10,000 or indemnification obligationsmore or (B) arising in connection with the acquisition aggregate payments by Aradigm of $50,000 or disposition by the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Companymore;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLParrangement;
(ixiv) relates any agreement relating to the acquisition or disposition of any business or assets (other than the purchase and whether by merger, sale of crude oil stock, sale of assets or otherwise);
(v) any agreement 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);
(vi) any option, license, franchise or similar agreement;
(vii) any agency, dealer, sales representative, marketing or other similar agreement;
(viii) any agreement that limits the freedom of Aradigm to compete in any line of business, with any Person or in any area within the Field (as defined in the Development and products License Agreement) or to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any Transferred Asset or which would so limit the freedom of Novo Nordisk Delivery Technologies, Inc. after the Closing Date;
(ix) any agreement with or for the benefit of any Affiliate of Aradigm; or
(x) any other agreement, commitment, arrangement or plan not made in the ordinary course of business consistent with past practice) pursuant that is material to which the Company or any of its Subsidiaries has any liability in excess of $100 million in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) of the Company Disclosure SchedulesDevelopment Program.
(b) Each such Contract described disclosed in clauses (i) through (x) above is referred any Schedule or required to herein as a “Material Contract”. Each Material Contract be disclosed pursuant to this Section is a valid and legally binding obligation agreement of Aradigm and is in full force and effect, and neither Aradigm nor, to the Company and its Subsidiaries as applicable knowledge of Aradigm, any other party thereto is in default or breach in any material respect under the terms of any such Contract, and, to the knowledge of the CompanyAradigm, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event or circumstance has occurred that, with notice or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effectany event of default thereunder. A copy True and complete copies of each Material such Contract has previously that is listed in Part II of Annex 1 to Exhibit A to the Asset Purchase Agreement have been delivered to ParentNovo Nordisk.
Appears in 3 contracts
Sources: Restructuring Agreement (Novo Nordisk a S), Restructuring Agreement (Aradigm Corp), Restructuring Agreement (Aradigm Corp)
Material Contracts. (a) Except for For purposes of this Agreement, as a “Material Contract” means any Contract (or group of the date hereof, neither related Contracts) to which the Company nor or any of its Subsidiaries is a party to or bound by which any agreement, lease, easement, license, contract, note, mortgage, indenture of their respective properties or other legally binding obligation (“Contract”) thatassets are bound:
(i) would be that is filed or required to be filed by the Company as a “material contract” (as such term is defined under Applicable Securities Laws in item 601(b)(10) of Regulation S-K of the SEC)Canada;
(ii) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Company;
(iii) that (A) limits purports to limit or otherwise restrict in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare compete in any business or pay dividends geographic or make distributions in respect of their capital stocktherapeutic area (or that, partner interestsfollowing the Arrangement, membership interests would by its terms apply such limits or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating restrictions to the formationParent or its Subsidiaries), creation(B) grants any exclusive rights, operation(C) contains a “most favored nation” or similar provision, management (D) includes any “take or control of any partnershippay” or “requirements” obligation, limited liability company (E) otherwise purports to prohibit or joint venture in which limit the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary right of the Company or wholly-owned Subsidiary any of its Subsidiaries to develop, license, sell or distribute any products or services or (F) that purports to limit or otherwise restrict the ability of the MLPCompany or its Subsidiaries to solicit for hire or to hire any person;
(ixiii) relates (A) containing any standstill, or similar agreement pursuant to which the Company or any of its Subsidiaries has agreed not to acquire assets or securities of another person, (B) containing a put, call, right of first refusal or similar right pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, or otherwise acquire or transfer, as applicable, any equity interests of any person or assets that have a fair market value or purchase price of more than $100,000 or (C) relating to the acquisition or disposition of any business or any material assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice(whether by merger, sale of shares or assets or otherwise);
(iv) that would prevent, materially delay or materially impede the Company’s ability to consummate the Transactions;
(v) that is between the Company or any of its Subsidiaries and any of their respective directors, officers, affiliates or any person beneficially owning five percent (5%) or more of the outstanding Common Shares;
(vi) that involves the payment or receipt by the Company or its Subsidiaries of royalties or other amounts in consideration for rights to practice any Intellectual Property of more than $100,000 in the aggregate;
(vii) (A) for the furnishing of services or the sale of products which involves, or would reasonably be expected in the future to involve, consideration in excess of $100,000 in any 12 month period, (B) for the receipt of services by a third party or for the purchase of raw materials, commodities, supplies, products, or other personal property, which involves payment by the Company or any of its Subsidiaries of consideration in excess of $100,000 in any 12 month period or which would reasonably be expected to involve payment by the Company or any of its Subsidiaries of consideration in excess of $100,000 in any future 12 month period during the term of such agreement except for payments to trade creditors in the ordinary course of business or (C) that provides for future payment obligations by the Company or any of its Subsidiaries of $100,000 or more related to clinical trials of Company Pharmaceutical Products;
(viii) under which any of the Company or any of its Subsidiaries is a lessee of, or holds or uses, any equipment, machinery, vehicle or other tangible personal property owned by a third person which requires future annual payments in excess of $100,000;
(ix) pursuant to which the Company or any of its Subsidiaries has entered into a partnership, joint venture, collaboration or other similar arrangement with any liability in excess of $100 million in any transaction or series of related transactionsperson (other than intercompany agreements);
(x) for capital expenditures or the acquisition or construction of fixed assets which requires aggregate future payments in excess of $100,000;
(xi) pursuant to which the Company or any of its Subsidiaries agrees not to make use of any material right in any Intellectual Property owned by the Company or any of its Subsidiaries;
(xii) pursuant to which the Company or any of its Subsidiaries has outstanding indebtedness, or provides a guarantee in a principal amount in excess of $100,000 other than indebtedness to trade creditors incurred in the ordinary course of business;
(xiii) containing a settlement with respect to a Proceeding (whether commenced or threatened in writing) of any nature;
(xiv) which requires future payments by the Company or any of its Subsidiaries in excess of $100,000 per annum containing “change of control” or similar provisions (whether or not such payments or benefits are contingent upon the occurrence of any other event);
(xv) under which the Company or its Subsidiaries have received, or are entitled to receive, payment from any person for use in the research or development of any Company Pharmaceutical Product;
(xvi) under which the Company is obligated to make future payments of over $100,000 for the research, development, or commercialization of any Company Pharmaceutical Product;
(xvii) pursuant to which the Company, any of its Subsidiaries or any other party thereto has material continuing obligations, rights or interests relating to the research, development, distribution, supply, manufacture, marketing or co-promotion of, or collaboration with respect to any Company Pharmaceutical Product;
(xviii) any Company Lease;
(xix) any employment, contractor or consulting Contract with any Company employee with annual compensation in excess of Cdn$200,000;
(xx) any Contract that provides for any change of control, severance or termination pay or other compensation or benefits related to termination of employment or services to the Company or any of its Subsidiaries;
(xxi) any collective bargaining agreement or other similar Contract with a union, works council, trade union or other labor relations entity;
(xxii) any Contract with any current or former officer or director of the Company or any of its Subsidiaries; or
(xxiii) any Contract of which the Company has knowledge to which any employee, consultant or independent contractor of the Company or a Subsidiary is bound that in any manner purports to (A) is a material joint operating agreement (JOA) restrict such employee’s, consultant’s or independent contractor’s freedom to engage in any line of business or activity or to compete with any other Person, or (B) defines assign to any material area other Person such employee’s, consultant’s or independent contractor’s rights to any Intellectual Property that relate to the business of mutual interest (AMI); orthe Company and its Subsidiaries.
(xib) is a Contract required to be set forth on Section 3.21(a)(xi13(b) of the Company Disclosure Schedules.
(bLetter contains a complete and accurate list of all Material Contracts to which the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets are bound, and identifies each subsection of Section 13(a) Each that describes such Contract described in clauses (i) through (x) above is referred to herein as a “Material Contract”. The Company has delivered or made available to the Parent true, correct and complete copies of the Material Contracts, including all amendments, supplements and modifications thereto. Each of the Material Contract Contracts is a valid and legally binding obligation of on the Company and or its Subsidiaries as applicable Subsidiary and, to the knowledge of the Company, each other party thereto, thereto and is in full force and effect effect. None of the Company, any of its Subsidiaries or, to the knowledge of the Company, any other party, is in breach of, or default under, in any material respect, any Material Contract, and enforceable no event has occurred that with notice or lapse of time or both would constitute such a breach or default thereunder in any material respect by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, noror, to the knowledge of the Company, any other party to a Material Contract is in thereto. Neither the Company nor any of its Subsidiaries has received any written notice or other communication regarding any actual or possible violation or breach of or violation of any provision ofdefault under, or in default underintention to cancel or modify, any Material Contract, .
(c) Section 13(c) of the Company Disclosure Letter contains a complete and no event has occurred that, with or without notice, lapse accurate list of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parentall Designated Contracts.
Appears in 3 contracts
Sources: Acquisition Agreement, Acquisition Agreement, Arrangement Agreement (Ym Biosciences Inc)
Material Contracts. (a) Except for this AgreementSection 2.14 of the Disclosure Schedule sets forth a list, as of the date hereofof this Agreement, neither of the following Contracts (each a “Material Contract”) to which the Company nor any of its Subsidiaries and each Subsidiary is a party to or bound by which it or any agreementof their properties, lease, easement, license, contract, note, mortgage, indenture rights or other legally binding obligation (“Contract”) thatassets are bound:
(ia) would be required any Contract that provides for obligations, payments, Liabilities, consideration, performance of services or the delivery of goods to be filed by the Company as a “material contract” (as such term is defined in item 601(b)(10) of Regulation S-K of the SEC);
(ii) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by the Company or any of its the Subsidiaries of any business which payment obligations are amount or would value reasonably be expected to be material to the Companyin excess of $250,000 annually;
(iiib) any Contract (Ai) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage not to compete in any business (including through “non-competition” or “exclusivity” provisions)geographic area, (Bii) would require that grants any Person the disposition of any material assets or line of business exclusive right to distribute products of the Company or its Subsidiaries orthe Subsidiaries, after the Effective Time, Parent or its Subsidiaries or (Ciii) that grants “most favored nation” status with respect or similar preferred pricing to any material obligations thatPerson, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) that grants (A) rights of first refusal, rights of first offer, rights of first negotiation or similar pre-emptive rights, rights or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) materially limits or restricts the ability of the Company or any of its the Subsidiaries to declare own, operate, sell, transfer, pledge or pay dividends otherwise dispose of any material amount of assets or make distributions in businesses, (v) that grants any Person a right to require the Company or the Subsidiaries to purchase all or any portion of the Company’s or the Subsidiaries’ requirements from any third party, or (vi) that obligates the Company or the Subsidiaries to provide maintenance and/or support with respect to any discontinued products of their capital stock, partner interests, membership interests the Company or other equity intereststhe Subsidiaries or any prior version of any products of the Company or the Subsidiaries;
(viiic) is a material partnershipany employment agreement, limited liability companyseverance agreement, joint venture bonus agreement, indemnification agreement, consulting agreement, non-compete agreement, change-in-control or golden parachute agreement or similar agreement with or for the benefit of any employee, director or officer of the Company or the Subsidiaries whose annual total compensation exceeds $150,000;
(d) any collective bargaining agreement with any labor union or other similar agreement or arrangement relating collective bargaining representative;
(e) any Contract related to the formationassignment, creationlicense or other disposition or encumbrance of Intellectual Property Rights owned or used by the Company (other than contracts or agreements for commercially available “off the shelf” software for which the Company pays fees less than $50,000 per year, operation, management or control of the Company’s standard customer contracts);
(f) any partnership, limited liability company or joint venture Contract in which the ultimate contracting party is a Governmental Authority;
(g) any Real Property Leases;
(h) any Contract relating to Company ownsIndebtedness or loans made by the Company, directly including all notes, mortgages, indentures and other obligations, guarantees of performance, agreements and instruments for or indirectlyrelating to any lending or borrowing (other than advances to employees for expenses in the Ordinary Course of Business or transactions with customers on credit in the Ordinary Course of Business);
(i) any Contract that is a letter of credit, any voting bond or economic interest of 15% similar arrangement running to the account of, or more and has invested for the benefit of, the Company or is contractually required to invest the Subsidiaries in an amount in excess of $100 million250,000;
(j) any Contract granting any Person a Lien on all or any part of the assets of the Company, other than Liens which will be released at or prior to the Closing and Permitted Liens;
(k) any Contract with respect the Top Customers or Top Suppliers;
(l) the Insurance Policies listed on Section 2.16 of the Disclosure Schedule;
(m) any Contract governing any business acquisition or disposition, merger or similar transaction, by the Company, regardless of whether such transaction has yet been consummated, either (i) within the last five (5) years or (ii) pursuant to which any indemnification, earn out or other contingent or deferred payments or similar rights or obligations remain outstanding;
(n) any Contract that provides for the payment of cash or other compensation or benefits upon the Merger and the consummation of the transactions contemplated hereby;
(o) any Contract that relates to voting, transfer or other arrangements related to any wholly-owned Subsidiary equity interests of the Company or wholly-owned Subsidiary the Subsidiaries or warrants, options or other rights to acquire any equity interests of the MLP;
(ix) relates to Company or the acquisition or disposition of any business or assets Subsidiaries (other than this Agreement, the purchase Merger and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company or any of its Subsidiaries has any liability in excess of $100 million in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMItransactions contemplated hereby); or
(xip) any Contract that is a Contract required otherwise material to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedules.
(b) Each such Contract described in clauses (i) through (x) above is referred to herein as a “Material Contract”. Each Material Contract is a valid operations and legally binding obligation business prospects of the Company and its Subsidiaries as applicable and, to the knowledge Subsidiaries. All of the Company, each other party thereto, and is Material Contracts are in full force and effect and constitute the valid, legal and binding obligation of the Company or the Subsidiaries, as applicable, and to the Knowledge of the Company, constitute the valid, legal and binding obligation of the other parties thereof, enforceable against each such Person in accordance with its terms, subject to (i) the effect of bankruptcy, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting the enforcement of creditor’s rights generally, and (ii) general equitable principles (whether considered in a proceeding in equity or at law). There are no material breaches or defaults by the Company or the applicable SubsidiarySubsidiaries under any of the Material Contracts or, in each caseto the Knowledge of the Company, subject to Creditors’ Rights, except as events which with notice or the passage of time would not, individually constitute a material breach or in default by the aggregate, be reasonably likely to have a Company Material Adverse Effector the Subsidiaries, and neither the Company nor the Subsidiaries has received written notice of any such material breach or default from any other party under any of its Subsidiaries, nor, to the knowledge Material Contracts. To the Knowledge of the Company, neither the Company nor its Subsidiaries have received notice from any other third party to a any Material Contract is in breach requesting or violation of any provision ofthreatening to amend, not renew or in default under, any terminate such Material Contract. The Company is not a party to any Contract with a Governmental Authority. The Company has made available to Buyer true and complete copies of all the Material Contracts, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parentincluding all amendments thereto.
Appears in 3 contracts
Sources: Merger Agreement (Majesco), Merger Agreement (Majesco), Merger Agreement (InsPro Technologies Corp)
Material Contracts. (a) Except for this AgreementSection 4.16(a) of the Company Disclosure Letter sets forth a true and complete list, as of the date hereofof this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) thatof:
(i) other than (A) contracts providing for the acquisition, purchase, sale, funding, pledging or divestiture of Company Portfolio Securities entered into by the Company, its Subsidiaries or the MSR Entities in the ordinary course of business, and (B) repurchase contracts entered pursuant to the Company’s existing master repurchase agreements (as in effect as of the date hereof) to finance the purchase price of assets or refinance the Company’s repurchase obligations pursuant to such master repurchase agreements, in each case in the ordinary course of the Company’s business, each merger, business combination, acquisition, purchase, sale or divestiture contract to which the Company or a Subsidiary of the Company is a party that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the receipt or making of future payments in excess of $250,000;
(ii) each contract that grants any right of first refusal or right of first offer or 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 (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $250,000;
(iv) each contract to which the Company or a Subsidiary of the Company is a party that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward, swap or other hedging transaction of any type, unless entered into for bona fide hedging purposes (collectively, “Hedging Contracts”);
(v) each employment contract to which the Company or a Subsidiary of the Company is a party other than employment contracts providing for at-will employment that can be terminated at any time with less than one day’s notice and without liability to the Company or any of its Subsidiaries;
(vi) each contract containing any non-compete, non-solicit, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete or otherwise engage in any line of business or with any Person or geographic area;
(vii) each contract pursuant to which the Company or any Subsidiary of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand;
(x) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers or employees of the Company or any of its Subsidiaries;
(xi) each vendor, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within 60 days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to be filed by pay fees, expenses or other costs in excess of $250,000 following the Company as a Effective Time;
(xii) each “material contract” (as such term is defined in item Item 601(b)(10) of Regulation S-K of under the SEC);
(iiExchange Act) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligationsnot otherwise described in this Section 4.16(a) arising in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Company;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company Company; and
(xiii) each contract evidencing an interest or obligation of the Company, its Subsidiaries or any MSR Entity in excess of $100 million or connection with any MSR Investment, including (A) Indebtedness related to such MSR Investment, (B) is purchase agreements for mortgage servicing rights (“MSRs”) underlying a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rightsMSR Investment, to any person (other than the extent such MSR Investment is entered into between the Company, its Subsidiaries or any MSR Entity and the applicable MSR purchaser (each, an “MSR Purchase Agreement”), (C) any agreement for which rights in the MSR Investment are pledged or which document any costs or expenses assumed or required to be paid in connection with a wholly-owned Subsidiary MSR Investment, (D) sale confirmations or other agreements of the Company relevant parties to substantiate the acquisition of any MSR Investment and any related MSR Purchase Agreement and (E) any consent or a wholly-owned Subsidiary agreement (via acknowledgment agreement, subordination of the MLPinterest agreement, bifurcation agreement or otherwise) from an Agency with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company or any of its Subsidiaries has any liability in excess of $100 million in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) of the Company Disclosure SchedulesMSR Investment.
(b) Each such Contract described Collectively, the contracts set forth in clauses (iSection 4.16(a) through (x) above is are herein referred to herein as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a “Company Material Contract”. Each Material Adverse Effect, each Company Contract is a valid legal, valid, binding and legally binding obligation enforceable in accordance with its terms on the Company, each of the Company and its Subsidiaries and each MSR Entity, as applicable applicable, that is a party thereto and, to the knowledge of the Company, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiaryeffect, in each casesubject, subject as to enforceability, to Creditors’ Rights, except . Except as would notnot reasonably be expected to have, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its SubsidiariesSubsidiaries nor any MSR Entity is in breach or default under any Company Contract nor, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent. Since January 1, 2022, neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company, any other party to a Material Contract is in breach or MSR Entity, has received written notice of any material violation of or material default under any provision of, or in default under, any Material Company Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parent.
Appears in 3 contracts
Sources: Merger Agreement (Arlington Asset Investment Corp.), Merger Agreement (Ellington Financial Inc.), Merger Agreement (Ellington Financial Inc.)
Material Contracts. (a) Except for this Agreement, as As of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) that:
Contract that (i) would be required to be filed by the Company as is a “material contract” (as such term is defined in item Item 601(b)(10) of Regulation S-K of promulgated by the SEC);
, (ii) includes any continuing would, after giving effect to the Merger, limit or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with restrict the acquisition or disposition by the Company Surviving Corporation or any of its Subsidiaries of or any business which payment obligations are successor thereto, from engaging or would reasonably be expected to be material to the Company;
(iii) (A) limits competing in any material respect either the type line of business that it currently engages in which the Company or its Subsidiaries is a reasonable extension thereof (or in which including with respect to Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “geographic area or contains exclusivity or non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status solicitation provisions with respect to any material obligations thatcustomers, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(viiiii) limits or otherwise restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stockto its stockholders, partner interests, membership interests or other equity interests;
(viiiiv) is a material partnership, limited liability company, joint venture provides for the operation or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary operating assets of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of its Subsidiaries by any business or assets (person other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company or any its Subsidiaries. Each Contract of its Subsidiaries has any liability the type described in excess of $100 million in any transaction this Section 3.25, whether or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be not set forth on Section 3.21(a)(xi) 3.25 of the Company Disclosure Schedules.
(b) Each such Contract described in clauses (i) through (x) above Schedule and whether or not entered into on or prior to the date hereof, is referred to herein as a “Company Material Contract”. Each Company Material Contract is a valid and legally binding obligation of the Company or its Subsidiary party thereto enforceable against the Company or its Subsidiary party thereto in accordance with its terms (except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and its Subsidiaries as applicable (ii) equitable remedies 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, to the knowledge of the Company’s knowledge, each other party thereto, and is in full force and effect effect, and enforceable by each of the Company or and each of its Subsidiaries which is a party thereto has performed in all material respects all obligations required to be performed by it to the applicable Subsidiarydate 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, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy None of each Material Contract the Company or any of its Subsidiaries has previously been delivered to Parent.knowledge of, or has received notice
Appears in 3 contracts
Sources: Merger Agreement (Allegheny Energy, Inc), Merger Agreement (Firstenergy Corp), Merger Agreement
Material Contracts. (a) Except for this Agreement, Section 4.17 of the Company Disclosure Letter contains a complete and correct list, as of the date hereof, neither of each Contract described below in this Section 4.17(a) under which the Company nor or any of its Subsidiaries Company Subsidiary has any current or future rights, responsibilities, obligations or liabilities (in each case, whether contingent or otherwise) or to which the Company or any Company Subsidiary is a party or to which any of their respective properties or bound by any agreementassets is subject, leasein each case as of the date hereof other than Company Benefit Plans listed on Section 4.10(a) of the Company Disclosure Letter (all Contracts of the type described in this Section 4.17(a) (other than this Agreement), easementwhether or not set forth on Section 4.17 of the Company Disclosure Letter, license, contract, note, mortgage, indenture or other legally binding obligation (being referred to herein as the “Material Contract”) that:):
(i) each Contract that limits in any material respect the freedom of the Company, any Company Subsidiary or any of their respective affiliates (including Parent and its affiliates after the Acceptance Time) to compete or engage in any line of business or geographic region or with any Person, or sell, supply or distribute any product or service or that otherwise has the effect of restricting the Company, the Company Subsidiaries or any of their respective affiliates (including Parent and its affiliates after the Acceptance Time) from the development, marketing or distribution of products and services, in each case, in any geographic area;
(ii) each Contract that limits the freedom of the Company or any Company Subsidiary to negotiate or, except for provisions requiring notice or consent to assignment by the counterparty thereto, consummate any of the Transactions;
(iii) any material partnership, joint venture, strategic alliance, limited liability company agreement (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries) or similar material Contract;
(iv) each acquisition or divestiture Contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be required expected to be filed result in the receipt or making by the Company or any Company Subsidiary of future payments in excess of $1,000,000;
(v) each Contract that gives any Person the right to acquire any assets of the Company or any Company Subsidiary (excluding ordinary course commitments to purchase Company Products) after the date hereof with consideration of more than $1,000,000;
(vi) Contracts of the type described in clauses (i) and (ii) of Section 4.14(h);
(vii) other than in the ordinary course of business consistent with past practice, any Contract to provide Source Code for any Company Product to any third Person, including any Contract to put such Source Code in escrow with a third Person on behalf of a licensee or contracting party;
(viii) any settlement agreement or similar Contract restricting in any material respect the operations or conduct of the Company, any Company Subsidiary or any of their respective affiliates (including Parent and its affiliates after the Acceptance Time);
(ix) each Contract not otherwise described in any other subsection of this Section 4.17(a) pursuant to which the Company or any Company Subsidiary is obligated to pay, or entitled to receive, payments in excess of $5,000,000 in the twelve (12) month period following the date hereof;
(x) any Contract that obligates the Company or any Company Subsidiary to make any capital investment or capital expenditure outside the ordinary course of business and in excess of $1,000,000;
(xi) each Contract that is a Material Customer Agreement, a Material Supplier Agreement or a Material Reseller Agreement;
(xii) each Contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Company Subsidiary or any of their respective affiliates (including Parent and its affiliates after the Acceptance Time) to own, operate, sell, transfer, pledge or otherwise dispose of any businesses or material assets;
(xiii) each Contract that contains any exclusivity rights or “most favored nations” provisions or minimum use, supply or display requirements that are binding on the Company or its affiliates (including Parent and its affiliates after the Acceptance Time);
(xiv) each non-ordinary course Contract that contains any material indemnification obligations by the Company or any Company Subsidiary;
(xv) each Company Government Contract pursuant to which the Company receives annual revenue in excess of $1,000,000;
(xvi) each Company Lease;
(xvii) each Contract relating to outstanding or potential Indebtedness (or commitments in respect thereof) of the Company or the Company Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in an amount in excess of $500,000 or relating to any Liens on the assets of the Company or any Company Subsidiary;
(xviii) each Contract involving derivative financial instruments or arrangements (including swaps, caps, floors, futures, forward contracts and option agreements) for which the aggregate exposure (or aggregate value) to the Company and the Company Subsidiaries is reasonably expected to be in excess of $500,000 or with a notional value in excess of $500,000;
(xix) each Contract between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate (other than a wholly owned Company Subsidiary) of the Company or any Company Subsidiary, any beneficial owner, directly or indirectly, of more than five percent (5%) of the number or voting power of the shares of Company Common Stock or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract pursuant to which the Company or any Company Subsidiary has an obligation to indemnify such officer, director, affiliate, beneficial owner, associate or immediate family member; and
(xx) any Contract not otherwise described in any other subsection of this Section 4.17(a) that would constitute a “material contract” (as such term is defined in item Item 601(b)(10) of Regulation S-K of the SEC);) with respect to the Company.
(iib) includes any continuing True and complete copies of each Material Contract in effect as of the date hereof have been made available to Parent or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection publicly filed with the acquisition or disposition by SEC prior to the date hereof. Neither the Company nor any Company Subsidiary is in breach of or any of its Subsidiaries default under the terms of any business which payment obligations are Material Contract, except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. To the Company’s Knowledge, as of the date hereof, no other party to any Material Contract is in breach of or default under the terms of any Material Contract where such breach or default has had or would reasonably be expected to be material to the Company;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (have, individually or in which Parent the aggregate, a Company Material Adverse Effect. Except as has not had and would not reasonably be expected to have, individually or any of its Subsidiaries after in the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions)aggregate, (B) would require the disposition of any material assets or line of business a Company Material Adverse Effect, each Material Contract is a valid, binding and enforceable obligation of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) Subsidiary which is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company or any of its Subsidiaries has any liability in excess of $100 million in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedules.
(b) Each such Contract described in clauses (i) through (x) above is referred to herein as a “Material Contract”. Each Material Contract is a valid and legally binding obligation of the Company and its Subsidiaries as applicable party thereto and, to the knowledge Company’s Knowledge, of the Company, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each caseeffect, subject to Creditors’ Rightsthe Enforceability Limitations.
(c) True and complete copies of each Company Government Contract Bid that, except if accepted, would be a Material Contract of the type specified in Section 4.17(a)(xv) (a “Material Government Bid”) have been made available to Parent prior to the date hereof.
(d) Except as has not been, and would notnot reasonably be expected to be, individually or in the aggregate, be reasonably likely material to have the Company and the Company Subsidiaries, taken as a whole, (i) each Company Material Adverse EffectGovernment Contract is binding on the Company or the Company Subsidiary party thereto and is in full force and effect, subject to the Enforceability Limitations, (ii) no Company Government Contract or offer, quotation, bid or proposal to sell products or services made by the Company or any Company Subsidiary to any Governmental Entity or any prime contractor (a “Government Contract Bid”) is the subject of bid or award protest proceedings resulting from the conduct of the Company or any of its Subsidiaries, and (iii) neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to a Material Contract Company Subsidiary is in breach of or violation default under the terms of any provision of, or Company Government Contract. The Company and the Company Subsidiaries are in default under, any Material Contractcompliance, and no event have been in compliance since January 1, 2016, in all material respects with the terms and conditions of each Company Government Contract and Government Contract Bid, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein. Except as has occurred thatnot been, with or without notice, lapse of time or both, and would constitute such a breach, violation or default, except for breaches, violations or defaults that would notnot reasonably be expected to be, individually or in the aggregate, material to the Company and the Company Subsidiaries, taken as a whole, since January 1, 2016, neither any Governmental Entity nor any prime contractor or subcontractor has notified the Company or any Company Subsidiary in writing that the Company or any Company Subsidiary has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Company Government Contract or Government Contract Bid. Except as has not been, and would not reasonably be expected to be, individually or in the aggregate, material to the Company and the Company Subsidiaries, taken as a whole, since January 1, 2016, no costs incurred by the Company or any Company Subsidiary pertaining to any Company Government Contract have been proposed for disallowance or deemed finally disallowed in writing by a Governmental Entity, and no material payment due to the Company or any Company Subsidiary pertaining to any Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off any such payment.
(e) Except as has not been, and would not reasonably be expected to be, individually or in the aggregate, material to the Company and the Company Subsidiaries, taken as a whole, since January 1, 2016, (i) none of the Company, any Company Subsidiary or any of their respective Principals (as defined in Federal Acquisition Regulation 52.209-5) has been debarred, suspended or excluded, or to the Company’s Knowledge, proposed for debarment, suspension or exclusion, from participation in or the award of Contracts or subcontracts for or with any Governmental Entity or doing business with any Governmental Entity, (ii) none of the Company or any Company Subsidiary has received any request to show cause (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements), (iii) none of the Company or any Company Subsidiary, to the Company’s Knowledge, is the subject of a finding of non-compliance, nonresponsibility or ineligibility for government contracting, (iv) none of the Company or any Company Subsidiary is for any reason listed on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs, (v) neither the Company nor any Company Subsidiary, nor any of their respective directors, officers, employees or Principals (as defined in Federal Acquisition Regulation 52.209-5), nor to the Company’s Knowledge, any consultants or agents of the Company or any Company Subsidiary, is or has been under administrative, civil or criminal investigation, indictment or information by any Governmental Entity with respect to the award or performance of any Company Government Contract, the subject of any actual or, to the Company’s Knowledge, threatened in writing, “whistleblower” or “qui tam” lawsuit, or audit (other than a routine contract audit) or investigation of the Company or any Company Subsidiary with respect to any Company Government Contract, including any alleged material irregularity, misstatement or omission arising thereunder or relating thereto, and to the Company’s Knowledge, there is no basis for any such investigation, indictment, lawsuit or audit and (vi) neither the Company nor any Company Subsidiary has made any voluntary disclosure (A) to any Governmental Entity with respect to any alleged material irregularity, misstatement, omission, fraud or price mischarging, or other violation of Law, arising under or relating to a Company Material Adverse Effect. A copy of each Material Government Contract has previously been delivered or (B) under the Federal Acquisition Regulation mandatory disclosure or payment provisions to Parentany Governmental Entity and, to the Company’s Knowledge, there are no facts that would require mandatory disclosure thereunder.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Tableau Software Inc), Agreement and Plan of Merger (Salesforce Com Inc)
Material Contracts. (a) Except for this Agreement, Parent’s Benefit Plans and agreements filed as exhibits to Parent SEC Documents, as of the date hereofof this Agreement, neither the Company Parent nor any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) thatby:
(i) would be required to be filed by the Company as a any “material contract” (as such term is defined in item Item 601(b)(10) of Regulation S-K of the SEC);
(ii) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Company;
(iii) Contract that (A) limits in expressly imposes any material respect either restriction on the type right or ability of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after to compete with any other person or acquire or dispose of the Effective Time) may engage securities of any other person or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets contains an exclusivity or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after clause that restricts the Effective Time, would apply to business of Parent or any of its Subsidiaries, including the Company and its SubsidiariesSubsidiaries in a material manner;
(iviii) (A) is an any mortgage, note, debenture, indenture, loan or credit Contractsecurity agreement, loan noteguaranty, mortgage Contract pledge or other Contract representing, agreement or any guarantee of, instrument evidencing indebtedness for borrowed money of the Company or any Subsidiary guarantee of the Company in excess such indebtedness of $100 million or (B) is a guarantee by the Company Parent or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in an amount in excess of $100 million;
(viv) grants (A) rights of first refusalany joint venture, rights of first negotiation partnership or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture company agreement or other similar agreement or arrangement Contract relating to the formation, creation, operation, management or control of any partnershipjoint venture, partnership or limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 millioncompany, other than with respect to any wholly-owned Subsidiary of the Company such Contract solely between Parent and its Subsidiaries or wholly-owned Subsidiary of the MLPamong Parent’s Subsidiaries;
(ixv) relates to any Contract expressly limiting or restricting the acquisition or disposition ability of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company or any of its Subsidiaries has to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the case may be;
(vi) any liability acquisition Contract that contains “earn out” or other contingent payment obligations, or remaining indemnity or similar obligations, that could reasonably be expected to result in payments after the date hereof by Parent or any of its Subsidiaries in excess of $100 million in any transaction or series of related transactions;million; and
(xvii) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is lease or sublease with respect to a Contract required to be set forth on Section 3.21(a)(xi) Parent Leased Real Property. All contracts of the Company Disclosure Schedules.
(b) Each such Contract described types referred to in clauses (i) through (xvii) above is are referred to herein as “Parent Material Contracts.”
(b) Except as would not have, individually or in the aggregate, a “Parent Material Adverse Effect, neither Parent nor any Subsidiary of Parent is in breach of or default under the terms of any Parent Material Contract”. To the knowledge of Parent, no other party to any Parent Material Contract is in breach of or default under the terms of any Parent Material Contract. Each Parent Material Contract is a valid and legally binding obligation of Parent or the Company and its Subsidiaries as applicable Subsidiary of Parent which is party thereto and, to the knowledge of the CompanyParent, of each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each caseeffect, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to ParentRemedies Exceptions.
Appears in 3 contracts
Sources: Merger Agreement (SemGroup Corp), Agreement and Plan of Merger (Energy Transfer LP), Merger Agreement
Material Contracts. (a) Except for as set forth in the SEC Reports filed prior to the date of this Agreement, as of the date hereofin Schedule 4.15 or otherwise expressly provided in this Agreement, neither the Company nor any of its the Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) thatby:
(i) would be required to be filed by the Company as a “any "material contract” " (as such term is defined in item Item 601(b)(10) of Regulation S-K of the SEC);
(ii) includes any continuing contract or other contingent payment obligations agreement for the purchase or lease (including as lessee) of materials or personal property from any “earn-out” supplier or indemnification obligations) arising in connection with for the acquisition furnishing of services to the Company or disposition any Subsidiary that involves or is likely to involve future aggregate payments by the Company or any of its the Subsidiaries of more than (x) $300,000 or (y) $100,000 in any business which payment obligations are or would reasonably be expected to be material to the Companyyear;
(iii) any contract or agreement for the sale, license or lease (Aas lessor) limits in any material respect either the type of business in which by the Company or its Subsidiaries (any Subsidiary of services, materials, products, supplies or in which Parent other assets, owned or leased by the Company or the Subsidiaries, that involves or is likely to involve future aggregate payments to the Company or any of its the Subsidiaries after the Effective Timeof more than (x) may engage $300,000 or the manner or locations in which any of them may so engage (y) $100,000 in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;year
(iv) (A) is an indentureany contract, loan agreement or credit Contract, loan note, mortgage Contract instrument relating to or other Contract representing, or any guarantee of, evidencing indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 millionSubsidiary;
(v) grants (A) rights of first refusal, rights of first negotiation any non-competition agreement or similar pre-emptive rightsany other agreement or obligation which purports to limit in any respect the manner in which, or (B) putsthe localities in which, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary business of the Company or a wholly-owned Subsidiary the Subsidiaries may be conducted;
(vi) any agreement with any present or former affiliates of the MLP) with respect to any asset that is material to the Company;
(vivii) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company partnership, joint venture, strategic alliance or cooperation agreement (or any of its Subsidiaries;
(vii) limits or restricts the ability agreement similar to any of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interestsforegoing);
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to agreement governing how any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLPShares shall be voted;
(ix) relates to any agreement with any shareholders of the acquisition Company;
(x) any agreement with any Managed Provider, including without limitation any such management agreement, employee lease agreement, billing services agreement, option agreement or disposition evidence of indebtedness; or
(xi) any business contract or assets (other than agreement which would prohibit or materially delay the purchase consummation of the Merger or any of the transactions contemplated by this Agreement. The foregoing contracts and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant agreements to which the Company or any of its Subsidiaries has any liability in excess of $100 million in any transaction Subsidiary are parties or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required are bound are collectively referred to be set forth on Section 3.21(a)(xi) of the herein as "Company Disclosure SchedulesMaterial Contracts."
(b) Each such Contract described in clauses (i) through (x) above is referred to herein as a “Material Contract”. Each Company Material Contract is a valid and legally binding obligation of on the Company and its Subsidiaries as applicable and(or, to the knowledge of the Companyextent a Subsidiary is a party, each other party thereto, such Subsidiary) and is in full force and effect effect, and enforceable by the Company or the applicable Subsidiaryand each Subsidiary have performed, in all material respects, all obligations required to be performed by them to date under each case, subject to Creditors’ RightsCompany Material Contract, except as would notwhere such noncompliance, individually or in the aggregate, be reasonably likely to would not have a Company Material Adverse Effect. The Company has, or has caused to be, made available to Parent or its counsel true and complete copies of the Company Material Contracts requested by same and any and all ancillary documents pertaining thereto (including, but not limited to, all amendments and waivers). Except as otherwise set forth in Schedule 4.15(b), each Company Material Contract will not cease to be legal, valid, binding, enforceable and in full force and effect on terms identical to those currently in effect as a result of the consummation of the transactions contemplated by this Agreement (except to the extent that its enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, fraudulent transfer, moratorium or other laws relating to or affecting creditors' rights generally and by general principles of equity), nor will the consummation of such transactions constitute a breach or default under such lease or sublease or otherwise give the landlord a right to terminate such lease or sublease. Except as set forth in Schedule 4.15(b), neither the Company nor any of its SubsidiariesSubsidiary knows of, or has given or received notice of, any violation or default under (nor, to the knowledge of the Company, does there exist any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred that, condition which with or without notice, lapse the passage of time or both, the giving of notice or both would constitute result in such a breach, violation or default, except for breaches, violations or defaults that would not, individually default under) any Company Material Contract.
(c) Except as disclosed in the SEC Reports filed prior to the date of this Agreement or in Schedule 4.15 or as expressly provided for in this Agreement, neither the aggregateCompany nor any of the Subsidiaries is a party to any oral or written (i) employment or consulting agreement that cannot be terminated on thirty days' or less notice, reasonably (ii) agreement with any officer or other key employee of the Company or any of the Subsidiaries the benefits of which are contingent or vest, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company or any the Subsidiaries of the nature contemplated by this Agreement, the Subscription Agreement or the Voting Agreement, (iii) agreement with respect to any officer or other key employee of the Company or any of the Subsidiaries providing any term of employment or compensation guarantee or (iv) stock or stock purchase plan (other than the Option Plans), any of the benefits of which will be expected to have a Company Material Adverse Effect. A copy increased, or the vesting of each Material Contract has previously been delivered to Parentthe benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement, the Subscription Agreement or the Voting Agreement or the value of any of the benefits of which will be calculated on the basis of any of such transactions.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Warburg Pincus Equity Partners Lp), Agreement and Plan of Merger (Hilltopper Holding Corp), Merger Agreement (Centennial Healthcare Corp)
Material Contracts. (ai) Except for Contracts reflected as exhibits to its SEC Reports filed prior to the date of this Agreement, as of the date hereofof this Agreement, neither the Company it nor any of its Subsidiaries Subsidiaries, nor any of their respective assets, businesses, or operations, is a party to, or is bound or affected by, or receives benefits under, (A) any Contract relating to the borrowing of money by it or bound any of its Subsidiaries or the guarantee by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) that:
(i) would be required to be filed by the Company as a “material contract” (as such term is defined in item 601(b)(10) of Regulation S-K of the SEC);
(ii) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by the Company it or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Company;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person obligation (other than the CompanyContracts pertaining to fully-secured repurchase agreements, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stocktrade payables, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement and Contracts relating to the formation, creation, operation, management borrowings or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products guarantees made in the ordinary course of business consistent with past practice), (B) pursuant to which any Contract containing covenants that limit the Company ability of it or any of its Subsidiaries has to compete in any liability line of business or with any Person, or that involve any restriction of the geographic area in which, or method by which, it or any of its Subsidiaries may carry on its business (other than as may be required by Law or any Governmental Authority) or which requires referrals of business or requires it or any of its Affiliates to make available investment opportunities to any Person on a priority, equal or exclusive basis, (C) any Contract with respect to the employment of any directors or executive officers, or with any consultants that are natural Persons involving the payment of $10,000,000 or more per annum, (D) any Contract that could reasonably be expected to prohibit, delay or materially impair the consummation of any of the transactions contemplated by this Agreement, (E) any Contract that involves expenditures or receipts by it or any of its Subsidiaries in excess of $100 million 25,000,000 per year not entered into in the ordinary course of business consistent with past practice, (F) any transaction Contract with any Governmental Authority (other than routine or series customary Contracts with any self-regulatory body) or (G) any other Contract or amendment thereto that would be required to be filed as an exhibit to any SEC Report (as described in Items 601(b) of related transactions;
Regulation S-K under the ▇▇▇▇ ▇▇▇) that has not been filed as an exhibit to or incorporated by reference in its SEC Reports filed prior to the date of this Agreement. With respect to each of its Contracts that are (A) reflected as an exhibit to any SEC Report, (B) would be required under Items 601(b)(4) and 601(b)(10) of Regulation S-K under the 1933 Act to be filed as an exhibit to any of its SEC Reports, or (C) that is disclosed in its Disclosure Letter: (w) each such Contract is in full force and effect; (x) neither it nor any of its Subsidiaries is in Default thereunder; (y) neither it nor any of its Subsidiaries has repudiated or waived any material provision of any such Contract; and (z) no other party to any such Contract is, to its knowledge, in Default thereunder in any material respect.
(ii) All interest rate swaps, caps, floors, option agreements, futures and forward contracts, and other similar risk management arrangements, whether entered into for its own account or for the account of one or more of its Subsidiaries or their respective customers, were entered into (A) is a material joint operating agreement (JOA) or in accordance with prudent business practices and all applicable Laws and (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required with counterparties believed to be set forth on Section 3.21(a)(xi) financially responsible, and each of the Company Disclosure Schedules.
(b) Each such Contract described in clauses (i) through (x) above them is referred to herein as a “Material Contract”. Each Material Contract is a valid and legally binding obligation of the Company and enforceable against it or its Subsidiaries as applicable and, to its knowledge, the knowledge applicable counterparties thereto, in accordance with its terms (except in all cases as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium, or similar Laws affecting the enforcement of creditors’ rights generally and except that the availability of the Company, each other party theretoequitable remedy of specific performance or injunctive relief is subject to the discretion of the court before which any proceeding may be brought), and is in full force and effect effect. Neither it nor any of its Subsidiaries, nor to its knowledge, any other party thereto, is in Default of any of its obligations under any such agreement or arrangement. Its Financial Statements disclose the value of such agreements and enforceable by the Company or the applicable Subsidiaryarrangements on a ▇▇▇▇-to-market basis in accordance with GAAP (including but not limited to Financial Accounting Statement 133) and, since September 30, 2006, there has not been a change in each case, subject to Creditors’ Rights, except as would notsuch value that, individually or in the aggregate, be reasonably likely to have has resulted in a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to ParentEffect on it.
Appears in 3 contracts
Sources: Merger Agreement (Mellon Financial Corp), Merger Agreement (Bank of New York Co Inc), Merger Agreement (Bank of New York Mellon CORP)
Material Contracts. (a) Except for this AgreementAgreement or as filed or publicly furnished with the SEC or with the Canadian Securities Authorities prior to the date hereof, none of Parent or any Parent Subsidiary is a party to or is bound by, as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture written contract or other legally binding obligation (“Contract”) that:
(i) would be required to be filed by the Company as agreement which is a “material contract” (as such term is defined in item Item 601(b)(10) of Regulation S-K of under the SEC);
Securities Act) to a Parent Entity (ii) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Company;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset each contract that is material to the Company;
(videscribed in this Section 6.09(a) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is being a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company or any of its Subsidiaries has any liability in excess of $100 million in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI“Parent Material Contract”); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedules.
(b) Each such Contract described in clauses (i) through (x) above is referred to herein as a “Material Contract”. Each Material Contract is a valid and legally binding obligation of the Company and its Subsidiaries as applicable and, to the knowledge of the Company, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would notExcept as, individually or in the aggregate, has not had and would not reasonably be reasonably likely expected to have a Company Parent Material Adverse Effect, (i) each Parent Material Contract is valid and binding on Parent (and/or each such Parent Subsidiary party thereto) and, to the Knowledge of Parent, each other party thereto, (ii) each Parent Material Contract is in full force and effect (except for expiration thereof in the ordinary course in accordance with the terms thereof), enforceable against Parent or each such Parent Subsidiary party thereto, as the case may be, in accordance with its terms, except, in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Laws affecting creditors’ rights generally and by general principles of equity and (iii) neither the Company Parent nor any of its Subsidiariesthe Parent Subsidiaries that is a party thereto, nor, to the knowledge Knowledge of the CompanyParent, any other party to a Material Contract thereto, is in breach or violation of any provision of, or in default under, any such Parent Material Contract, and and, to the Knowledge of Parent, no event has occurred that, that with notice or without notice, lapse of time or both, both would constitute such a breachbreach or default thereunder by Parent or any of the Parent Subsidiaries, violation or, to the Knowledge of Parent, any other party thereto, or defaultpermit termination, material modification or acceleration by any third party thereunder. As of the date hereof, neither Parent nor any of the Parent Subsidiaries has received any written notice of termination or cancelation under any Parent Material Contract or received any written notice of breach of or any default under any Parent Material Contract which breach has not been cured except for breachesany termination, violations breach or defaults that would notdefault that, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Parent Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parent.
Appears in 3 contracts
Sources: Agreement and Plan of Reorganization (Brookfield Renewable Partners L.P.), Agreement and Plan of Reorganization (TerraForm Power, Inc.), Agreement and Plan of Reorganization (TerraForm Power, Inc.)
Material Contracts. (a) Except as set forth in the exhibit index for this Agreementthe Company’s Annual Report on Form 10-K for the year ended September 30, 2005 or as of the date hereofpermitted pursuant to Section 6.1, neither the Company nor any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) that:
(i) would be required any agreement relating to be filed the incurring of Indebtedness by the Company or any of its Subsidiaries in an amount in excess of $2,000,000 in the aggregate, including any such agreement which contains provisions that restrict, or may restrict, the conduct of business of the issuer thereof as a currently conducted (collectively, “Instruments of Indebtedness”), (ii) any “material contract” (as such term is defined in item Item 601(b)(10) of Regulation S-K of the SEC);
(ii) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Company;
, (iii) (A) limits any non-competition or exclusive dealing agreement, or any other agreement or obligation which purports to limit or restrict in any material respect either (A) the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business ability of the Company or its Subsidiaries to solicit customers or (B) the manner in which, or the localities in which, all or any portion of the business of the Company and its Subsidiaries or, after following consummation of the Effective Timetransactions contemplated by this Agreement, Parent and its Subsidiaries, is or its Subsidiaries would be conducted, or any non-competition or exclusive dealing agreement, or any other agreement or obligation of the type described in (A) or (CB) grants “most favored nation” status with respect of this clause (iii) which following the Closing would purport to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including Affiliates other than the Company and its Subsidiaries;
, (iv) (A) is an indentureany agreement providing for the indemnification, loan or credit Contractin excess of $1,000,000, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of by the Company or any a Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person Person other than the Company or a wholly-owned Subsidiary standard form indemnity provisions in agreements with customers of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
, (viiv) any joint venture or partnership agreement, (vi) any agreement that grants any right of first refusal or right of first offer or similar right or that limits or restricts purports to limit the ability of the Company or any of its Subsidiaries to declare own, operate, sell, transfer, pledge or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control otherwise dispose of any partnershipmaterial assets or business, limited liability company (vii) any contract or joint venture in which the Company owns, directly or indirectly, agreement providing for any voting or economic interest of 15% or more and has invested or is contractually required to invest payments in excess of $100 million1,000,000 that are conditioned, other than with respect to any wholly-owned Subsidiary in whole or in part, on a change of control of the Company or wholly-owned Subsidiary any of the MLP;
its Subsidiaries, (viii) any collective bargaining agreement, (ix) relates any agreement material to the acquisition Company and its Subsidiaries, taken as a whole, pertaining to the use of or disposition of granting any business right to use or assets practice any rights under any Intellectual Property, (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practicex) any agreements pursuant to which the Company or any of its Subsidiaries has leases any liability material real property or leases any material real property to third parties, (xi) any contract or agreement material to the Company and its Subsidiaries, taken as a whole, providing for the outsourcing or provision of servicing of customers, technology or product offerings of the Company or its Subsidiaries, (xii) any contract or other agreement to which Apogent Technologies Inc. (“Former Company Parent”) or any of its present or former Subsidiaries is a party or otherwise bound, and (xiii) any other contract or other agreement not made in excess the ordinary course of $100 million in any transaction or series of related transactions;
(x) business consistent with past practice that (A) is material to the Company and its Subsidiaries taken as a material joint operating agreement (JOA) whole or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required would reasonably be expected to be set forth on Section 3.21(a)(xi) materially delay or prevent the consummation of the Company Disclosure Schedules.
Merger or any of the transactions contemplated by this Agreement (b) Each such Contract described the agreements, contracts and obligations listed in clauses (i) through (xxiii) above is being referred to herein as “Company Material Contracts”). None of the Company Material Contracts contains a “most favored nation” clause or other term providing preferential pricing or treatment to a third party. Section 4.9(a) of the Company Disclosure Schedule sets forth as of the date hereof all of the Company Material Contract”. Contracts.
(b) Each Company Material Contract is a valid and legally binding obligation on the Company (or, to the extent a Subsidiary of the Company and its Subsidiaries as applicable is a party, such Subsidiary) and, to the knowledge of the Company, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to a thereto, and each Company Material Contract is in full force and effect. Neither the Company nor any of its Subsidiaries is in breach or violation default under any Company Material Contract or is aware of any provision of, or in default under, any Material Contract, and no event has occurred that, condition that with or without notice, lapse the passage of time or both, the giving of notice or both would constitute result in such a breach, violation breach or default, except for breaches, violations in each case where any such breaches or defaults that would not, individually or in the aggregate, reasonably be expected to have result in a Material Adverse Effect on the Company. Neither the Company nor any Subsidiary of the Company knows of, or has received written notice of, any breach or default under (nor, to the knowledge of the Company, does there exist any condition which with the passage of time or the giving of notice or both would result in such a breach or default under) any Company Material Contract by any other party thereto except where any such violation or default would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse EffectEffect on the Company.
(c) There are no provisions in any Instrument of Indebtedness that provide any restrictions on the repayment of the outstanding Indebtedness thereunder, or that require that any financial payment (other than payment of outstanding principal and accrued interest) be made in the event of the repayment of the outstanding Indebtedness thereunder prior to expiration. A copy For purposes of each Material Contract has previously been delivered this Agreement, “Indebtedness” of a Person shall mean (i) all obligations of such Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures, notes and similar instruments, (iii) all leases of such Person capitalized in accordance with GAAP, and (iv) all obligations of such Person under sale-and-lease back transactions, agreements to Parentrepurchase securities sold and other similar financing transactions.
Appears in 3 contracts
Sources: Merger Agreement (Sybron Dental Specialties Inc), Merger Agreement (Danaher Corp /De/), Merger Agreement (Danaher Corp /De/)
Material Contracts. (a) Except for this Agreement, as of the date hereof, neither none of the Company nor or any of its the Company Subsidiaries is a party to or bound by any agreement(for purposes of this Agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (each of the following Contracts shall be deemed to constitute a “Company Material Contract”) that:):
(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 promulgated by the SEC or that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act;
(ii) any Contract containing any covenant, commitment or other obligation (A) limiting in any material respect the right of the Company or any Company Subsidiary to engage in any line of business, to make use of any material Company Intellectual Property owned by any Acquired Company or to compete with any other Person in any location or line of business, (B) granting any exclusive rights with respect to any Company Intellectual Property that is material to the Company and the Company Subsidiaries, taken as a whole, (C) containing any “most favored nations” terms and conditions (including with respect to pricing) granted by an Acquired Company or (D) restricting or otherwise limiting the freedom or right of an Acquired Company to sell, distribute or manufacture any products or service or any technology or other assets to or for any other Person.
(iii) any Contract with any Affiliate, director, executive officer (as such term is defined in item 601(b)(10the Exchange Act), and, to the Knowledge of the Company, any holder of 5% or more of Company Common Stock or any of their Affiliates (other than the Company) or immediate family members (other than offer letters for employment that can be terminated at will, without severance obligations, and Contracts pursuant to Company Equity Awards), including any Contract with a related person (as defined in Item 404 of Regulation S-K of the SEC);
(iiSecurities Act) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising that would, in connection with the acquisition or disposition by each case, be required to be disclosed in the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Company;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its SubsidiariesSEC Reports but has not been disclosed;
(iv) (A) is an indenture, loan or credit any IP Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusalany Contract for the acquisition, rights of first negotiation or similar pre-emptive rightsdisposition, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary sale of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business properties or assets (by merger, purchase or sale of stock or assets or otherwise) other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practicepractices;
(vi) any Contract relating to Indebtedness of any Acquired Company, whether incurred, assumed, guaranteed or secured by any asset, with principal amount in excess of $250,000;
(vii) any Contract under which the Company or any Company Subsidiary has, directly or indirectly, made any loan, capital contribution to, or any other investment in, any Person (other than the Company or any Company Subsidiary, and other than investments in marketable securities or advances to Company Employees in the ordinary course of business consistent with past practices);
(viii) any Contract that is a settlement, conciliation or similar agreement with or before any Governmental Body and pursuant to which any Acquired Company will be required after the date of this Agreement to pay consideration in excess of $250,000 or require any Acquired Company to conduct its business in accordance with any material obligations or limitations from and after the execution of such Contract;
(ix) any Contract that prohibits the payment of dividends or distributions in respect of the capital stock of any Acquired Company, prohibits the pledging of the capital stock or other equity interests of any Acquired Company or prohibits the issuance of any guaranty by any Acquired Company;
(x) any Contract (other than a material Company Employment Agreement listed on Section 3.10(a) of the Company Disclosure Letter) that requires the Company or any successor or acquirer of the Company to make any payment to another Person, as a result of a change of control of the Company, including any milestone or earnout payments, or gives another Person the right to receive or elect to receive any payment as a result of a change of control of the Company;
(xi) any Contract for the lease or sublease of any real property;
(xii) any Contract under which an Acquired Company may receive or is required to make any earn-out payments in the form of future milestones or royalty payments;
(xiii) any Contract, other than an IP Contract, that includes any royalty, license fee or other payment obligations of any Acquired Company with respect to the use of the Company Intellectual Property or the exploitation of the Company Products in connection with the business of the Acquired Companies currently conducted;
(xiv) any Contract, other than an IP Contract, pursuant to which any Person has acquired or obtained, or has the right to acquire or obtain, any license, sublicense, right to use, covenant not to ▇▇▇ or not to assert, ownership or comparable rights to any of the Company Intellectual Property;
(xv) any Company Employee Agreement pursuant (A) to which the applicable Company Employee receives annual cash compensation of $250,000 or more and/or (B) with a Company Employee that resides outside of the United States or that principally provides services outside of the United States;
(xvi) any Contract pursuant to which the Company or any Company Subsidiary has assumed, or agreed to discharge or otherwise take responsibility for, any existing or potential liability of another Person for infringement, misappropriation or violation of any Intellectual Property Rights;
(xvii) any Contract with (A) Clal or any of its Subsidiaries Affiliates, or (B) Teva Pharmaceutical Industries Ltd. or any of its Affiliates;
(xviii) any Contract under which any Acquired Company has agreed to indemnify any liability Person against any infringement, violation or misappropriation of the Intellectual Property Rights of a third Person other than clinical trial and materials transfer agreements entered into in the ordinary course of the Company’s business;
(xix) any Contract pursuant to which the Company or any Company Subsidiary made payments in excess of $100 million 350,000 in the aggregate in fiscal year 2014 or is required to make payments in excess of $350,000 in the aggregate in any transaction or series of related transactions;fiscal year thereafter; and
(xxx) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required pursuant to be set forth on Section 3.21(a)(xi) of which the Company Disclosure Schedulesor any Company Subsidiary received payments in excess of $200,000 in the aggregate in fiscal year 2014 or is entitled to receive payments in excess of $200,000 in the aggregate in any fiscal year thereafter.
(b) Each such Contract described in clauses (i) through (x) above is referred to herein as a “Material Contract”. Each Material Contract is a valid and legally binding obligation of the Company Material Contracts is valid and its Subsidiaries as applicable binding on the Company and each Company Subsidiary party thereto and, to the knowledge Knowledge of the Company, each other party thereto, thereto and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or defaulteffect, except for breaches, violations such failures to be valid and binding or defaults to be in full force and effect that would not, individually or in the aggregate, have had or reasonably be expected to have a material and adverse effect on the Company and the Company Subsidiaries, taken as a whole. There is no material breach of or default under any Company Material Contract by the Company or any Company Subsidiary and no event has occurred that with the lapse of time or the giving of notice or both would constitute a material breach of or default thereunder by the Company or any Company Subsidiary. To the Knowledge of the Company, each Company Material Contract is enforceable by the Acquired Company party thereto in accordance with its terms, subject to bankruptcy, insolvency or similar Laws affecting the enforcement of creditors rights generally and equitable principles of general applicability. Since January 1, 2012, the Company has not received any written notice regarding any violation or breach or default under any Company Material Contract that has not since been cured, except for violations or breaches that are not, individually or in the aggregate, reasonably likely to have a Company Material Adverse Effect. A copy The Company has not waived in writing any rights under any Company Material Contract, the waiver of each which would have, either individually or in the aggregate, a Material Contract has previously been delivered to ParentAdverse Effect.
Appears in 3 contracts
Sources: Merger Agreement (Hyperion Therapeutics Inc), Merger Agreement (Horizon Pharma PLC), Merger Agreement (Hyperion Therapeutics Inc)
Material Contracts. (a) Except for this Agreement, The Company Disclosure Letter sets forth a complete and accurate list as of the date hereof, neither of this Agreement of any of the following to which the Company nor or any Subsidiary of its Subsidiaries the Company is a party to or by which the Company or any Subsidiary of the Company is bound by any agreement(each, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) that:a "COMPANY MATERIAL CONTRACT"):
(ia) would be required to be filed by the Company as a “material contract” (as such term is defined in item 601(b)(10) of Regulation S-K of the SEC);
(ii) includes any continuing all contracts, agreements, commitments or other contingent payment obligations (including any “earn-out” understandings which involve payments or indemnification obligations) arising in connection with the acquisition or disposition receipts by the Company or any of its Subsidiaries in excess of $1,000,000 during any business which payment obligations are twelve month period;
(b) all written management, compensation, employment or would reasonably be expected to be material to other contracts entered into with any executive officer or director of the Company or any Subsidiary of the Company;
(iiic) all contracts or agreements under which the Company or any Subsidiary of the Company has any outstanding indebtedness, obligation or liability for borrowed money or the deferred purchase price of property or has the right or obligation to incur any such indebtedness, obligation or liability;
(Ad) limits in any material respect either the type all bonds or agreements of business guarantee or indemnification in which the Company or its Subsidiaries any Subsidiary of the Company acts as surety, guarantor or indemnitor with respect to any obligation (fixed or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisionscontingent), (B) would require other than any such guarantees of the disposition of any material assets or line of business obligations of the Company or its Subsidiaries or, after any Subsidiary of the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its SubsidiariesCompany;
(ive) all noncompete agreements to which the Company, any Subsidiary of the Company or any affiliate thereof is a party;
(Af) all partnership and joint venture agreements;
(g) each other contract or agreement listed as an exhibit to the Company's most recent Form 10-K and 10-Q; and
(h) all agreements relating to material business acquisitions or dispositions during the last three years, including any separate tax or indemnification agreements. Except as set forth in the Company Disclosure Letter, (i) neither the Company nor any Subsidiary of the Company is an indenture, loan or credit in default under the terms of any Company Material Contract, loan note, mortgage Contract which default permits the other party to adversely alter or other Contract representing, or terminate any guarantee of, indebtedness for borrowed money rights of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by accelerate the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the under such Company or any of its Subsidiaries has any liability in excess of $100 million in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedules.
(b) Each such Contract described in clauses (i) through (x) above is referred to herein as a “Material Contract”. Each Material Contract is a valid and legally binding obligation of the Company and its Subsidiaries as applicable andor to collect damages, (ii) to the knowledge of the Company, each no other party theretothereto is in default in any material respect under the terms of any Company Material Contract, (iii) each Company Material Contract is valid, binding and is in full force and effect in all material respects, and enforceable by (iv) all contracts or agreements under which the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither any Subsidiary of the Company nor has any of its Subsidiariesoutstanding indebtedness, nor, to the knowledge of the Company, obligation or liability for borrowed money may be prepaid in full without any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parentprepayment penalties.
Appears in 3 contracts
Sources: Merger Agreement (International Paper Co /New/), Merger Agreement (International Paper Co /New/), Merger Agreement (Shorewood Packaging Corp)
Material Contracts. (a) Except for this Agreement, as of the date hereofof this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (excluding (i) any Hydrocarbon Contract (as defined above but disregarding any materiality qualifiers in such definition) that is a lease, easement or other instrument constituting the chain of title to the properties and assets onshore in the United States owned or held by the Company or any of its Subsidiaries and (ii) any Company Benefit Plan) (each, a “Contract”) that:
(i) would be required to be filed by the Company as a “material contract” (as such term is defined in item 601(b)(10) of Regulation S-K of the SEC);
(ii) includes any continuing contingent payment obligations or other contingent similar payment obligations (including any “earn-out” obligations) that would require payments to any person (other than the Company, a wholly-owned Subsidiary of the Company, Parent, or indemnification obligationsany wholly-owned Subsidiary of the Parent) arising in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to result in future payments by the CompanyCompany or its Subsidiaries that exceed, individually or in the aggregate, $100 million;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries, and would run in favor of any Person (other than the Company, a wholly-owned Subsidiary of the Company, Parent, or any wholly-owned Subsidiary of Parent);
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract Contract, or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million (excluding any government-mandated or state-wide bonds or guarantees) or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 millionmillion (excluding any government-mandated or state-wide bonds or guarantees);
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLPCompany) with respect to any asset that is material to the Company; provided that, in each case of (A) and (B), with respect to any Hydrocarbon Contract (as defined above but disregarding any materiality qualifiers in such definition) related to any properties or assets owned or held by the Company or any of its Subsidiaries, only to the extent that such rights would be triggered by the Transactions;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement arrangement, in each case that is material to the Company, relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest capital in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLPCompany;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil Hydrocarbons and products in the ordinary course of business consistent with past practice) pursuant to which the Company or any of its Subsidiaries has any liability in excess of $100 million in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) or in each of the geographic regions set forth in Section 3.21(a)(x) of the Company Disclosure Schedules (B) defines any provided that, for these purposes, “material” shall mean material area of mutual interest (AMIto the Company and its Subsidiaries with respect to their operations in such geographic region); or;
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) of the Company Disclosure SchedulesSchedules (such Contracts, the “Specified Contracts”);
(xii) is a Contract providing for indemnification of any officer or director of (A) the Company or (B) any of its Significant Subsidiaries (excluding the MLP and its Subsidiaries); or
(xiii) is any confidentiality agreement or standstill agreement the Company has entered into with any third party (or any agent thereof) that is in effect on the date of this Agreement containing any exclusivity or standstill provisions that are or will be binding on the Company, any of its Subsidiaries or, after the Effective Time, Parent or any of its Subsidiaries, including, after the Effective Time, the Company or any of its Subsidiaries.
(b) Each such Contract described in clauses (i) through (xxii) and not (xiii) above is referred to herein as a “Material Contract”. .” Each Material Contract is a valid and legally binding obligation of the Company and its Subsidiaries as applicable and, to the knowledge of the Company, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered made available to Parent.
Appears in 3 contracts
Sources: Merger Agreement (Hess Corp), Merger Agreement (Hess Corp), Merger Agreement (Chevron Corp)
Material Contracts. (a) Except for Other than this AgreementAgreement and the Ancillary Documents, as of the date hereof, neither the Company nor there are no Contracts to which SPAC is a party or by which any of its Subsidiaries is a party to properties or bound by any agreementassets may be bound, leasesubject or affected, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) that:
which (i) would creates or imposes a Liability greater than $50,000, (ii) may not be required to be filed cancelled by SPAC on less than 60 days’ prior notice without payment of a material penalty or termination fee, (iii) prohibits, prevents, restricts or impairs in any material respect any business practice of SPAC or any of its current or future Affiliates, any acquisition of material property by SPAC or any of its current or future Affiliates, or restricts in any material respect the Company as ability of SPAC or any of its current or future Affiliates from engaging in any business or from competing with any other Person or (iv) is a “material contract” (as such term is defined in item 601(b)(10) of Regulation S-K of the SECSecurities Act) (each, a “SPAC Material Contract”);. All SPAC Material Contracts have been made available to the Company other than those that are exhibits to the SEC Reports.
(iib) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Company;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with With respect to any material obligations that, after each SPAC Material Contract: (i) the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage SPAC Material Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation at arms’-length and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practicebusiness, (ii) pursuant to which the Company or any of its Subsidiaries has any liability in excess of $100 million in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedules.
(b) Each such Contract described in clauses (i) through (x) above is referred to herein as a “Material Contract”. Each SPAC Material Contract is a valid valid, binding and legally binding obligation of the Company and its Subsidiaries as applicable enforceable in all material respects against SPAC and, to the knowledge Knowledge of SPAC, the Company, each other party parties thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary(except, in each case, subject to Creditors’ Rightsas such enforcement may be limited by the Enforceability Exceptions), except as would not, individually (iii) SPAC is not in breach or default in the aggregate, be reasonably likely to have a Company Material Adverse Effectany material respect, and neither no event has occurred that with the Company nor passage of time or giving of notice or both would constitute such a breach or default in any of its Subsidiariesmaterial respect by SPAC, noror permit termination or acceleration by the other party, under such SPAC Material Contract, and (iv) to the knowledge Knowledge of the CompanySPAC, any no other party to a any SPAC Material Contract is in breach or violation of default in any provision of, or in default under, any Material Contractmaterial respect, and no event has occurred that, that with or without notice, lapse the passage of time or both, giving of notice or both would constitute such a breachbreach or default by such other party, violation or default, except for breaches, violations permit termination or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company acceleration by SPAC under any SPAC Material Adverse Effect. A copy of each Material Contract has previously been delivered to ParentContract.
Appears in 3 contracts
Sources: Business Combination Agreement (Air Water Co), Business Combination Agreement (Home Plate Acquisition Corp), Business Combination Agreement (Home Plate Acquisition Corp)
Material Contracts. (a) Except for as disclosed in the Specified Company SEC Documents, to the extent that it is reasonably apparent that the disclosure in the Specified Company SEC Documents is responsive to the matters set forth in this AgreementSection 3.12(a), as of the date hereofof this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, notearrangement, mortgagecommitment or understanding (whether written or oral), indenture other than hedging or other legally binding obligation (“Contract”) that:
similar arrangements in the ordinary course of business consistent with past practice, (i) would be required to be filed by the Company as which is a “material contract” contract (as such term is defined in item Item 601(b)(10) of Regulation S-K of the SEC);
) to be performed after the date of this Agreement, (ii) includes any continuing which materially restrains, limits or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with impedes the acquisition or disposition by the Company Company’s or any of its Subsidiaries of Subsidiaries’ ability to compete with or conduct any business which payment obligations are or would reasonably be expected to be material to the Company;
any line of business (iii) including (A) limits in any material respect either geographic limitations on the type of business in which the Company or its Subsidiaries (or in which Parent Company’s or any of its Subsidiaries after the Effective Time) may engage Subsidiaries’ activities or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require any confidentiality agreement, area of mutual interest or standstill agreement with any third party (or any agent thereof) that contains any exclusivity or standstill provisions that are or will be binding on the disposition Company, any of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including ); provided that (x) the Company and need not disclose in the Company Disclosure Letter information related to those agreements which would otherwise be covered by this clause (ii) to the extent such agreements prohibit the Company from disclosing the existence or any terms of such agreements to third parties, except that if any such agreements contain any material restrictions, limits or impediments on the Company’s or its Subsidiaries;
’ ability to compete with or conduct any business or any line of business, such restrictions, limits and impediments shall be disclosed without providing the identity of the parties to the agreements on the Company’s Disclosure Letter, and (y) the Company need not disclose on its Disclosure Letter to this Agreement information related to those agreements which would otherwise be covered by this clause (ii) to the extent such agreements relate to a potential sale of all or substantially all of the assets or equity securities of the Company (whether by merger or otherwise), except that the Company shall disclose on the Company’s Disclosure Letter the date of each such agreement, (iii) which is a material take-or-pay agreement or other similar agreement that entitles purchasers of production to receive delivery of Hydrocarbons without paying therefor, (iv) (A) is an indenturewhich contains a put, loan or credit Contract, loan note, mortgage Contract call or other Contract representing, right of acquisition or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by disposition pursuant to which the Company or any of its Subsidiaries of such indebtedness could be required to purchase or sell, as applicable, any equity interests (including licensing or leasehold interests) of any person other Person or assets that have a market value or purchase price of more than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal5,000,000, rights of first negotiation or similar pre-emptive rightsor, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset calls on production, that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of obligate the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stocksell Hydrocarbons at a price which is less than market value, partner interests, membership interests or other equity interests;
(viiiv) which is a material partnership, limited liability company, partnership or joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company partnership or joint venture material to the Company and its Subsidiaries, taken as a whole, in which the Company ownsCompany, directly or indirectly, any owns more than a 10% voting or economic interest, or any interest valued at more than $10,000,000 without regard to percentage voting or economic interest, or (vi) which is otherwise material to the Company and its Subsidiaries taken as a whole. Each contract, arrangement, commitment or understanding of 15% the type described in this Section 3.12(a) (i) through (vi), whether or more not disclosed in the Specified Company SEC Documents, is referred to herein as a “Company Material 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 or disclosed in the Specified Company SEC Documents, is a Company Material Contract). The Company has previously made available to Parent true, complete and correct copies of each Company Material Contract other than those which the Company is entitled to omit from the Company Disclosure Letter pursuant to the proviso to clause (ii) of the first sentence of this Section 3.12(a).
(i) Each Company Material Contract is valid and binding and in full force and effect, (ii) the Company and each of its Subsidiaries has invested or is contractually performed in all respects all obligations required to invest in excess be performed by it to date under each Company Material Contract, (iii) no event or condition exists which constitutes or, after notice or lapse of $100 milliontime or both, other than with respect to any wholly-owned Subsidiary would constitute, a default on the part of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company or any of its Subsidiaries has under any liability in excess of $100 million in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) of the such Company Disclosure Schedules.
(b) Each such Contract described in clauses (i) through (x) above is referred to herein as a “Material Contract”. Each Material Contract is a valid and legally binding obligation of the Company and its Subsidiaries as applicable and, (iv) to the knowledge Knowledge of the Company, each no other party thereto, and to such Company Material Contract is in full force and effect and enforceable by the Company or the applicable Subsidiarydefault in any respect thereunder, except in each casecase for any invalidity, subject to Creditors’ Rightsnonperformance, except as would notevent, condition or default that, individually or in the aggregate, has not had, and would not be reasonably likely to have have, a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, nor, to the knowledge of Effect on the Company, any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parent.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (KCS Energy Inc), Agreement and Plan of Merger (Petrohawk Energy Corp), Merger Agreement (Petrohawk Energy Corp)
Material Contracts. (a) Except for this AgreementSection 5.16(a) of the Parent Disclosure Letter sets forth a true and complete list, as of the date hereofof this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) thatof:
(i) would be required other than (A) contracts providing for the acquisition, purchase, sale, funding, pledging or divestiture of any asset described in “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Our Targeted Asset Classes” in Parent’s Annual Report on Form 10-K filed with the SEC on March 1, 2023 entered into by Parent or its Subsidiaries in the ordinary course of business, and (B) repurchase and reverse repurchase contracts entered pursuant to be filed by the Company as a “material contract” Parent’s existing master repurchase agreements (as such term is defined in item 601(b)(10) of Regulation S-K effect as of the SEC)date hereof) to finance the purchase price of assets or refinance Parent’s repurchase obligations pursuant to such master repurchase agreements, in each case in the ordinary course of Parent’s business, each merger, business combination, acquisition, purchase, sale or divestiture contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the receipt or making of future payments in excess of $500,000;
(ii) includes each contract that grants any continuing right of first refusal or other contingent payment obligations (including right of first offer or that limits the ability of Parent, any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by the Company Subsidiary of Parent or any of its Subsidiaries their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any business which payment obligations are businesses, securities or would reasonably be expected assets (other than provisions requiring notice of or consent to be material to the Companyassignment by any counterparty thereto);
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries each contract relating to outstanding Indebtedness (or commitments or guarantees in which respect thereof) of Parent or any of its Subsidiaries after the Effective Time(whether incurred, assumed, guaranteed or secured by any asset) may engage or the manner or locations in which any excess of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries$500,000;
(iv) (A) is an indentureeach contract that involves or constitutes a material interest rate cap, loan or credit Contractinterest rate collar, loan note, mortgage Contract interest rate swap or other Contract representingcontract or agreement relating to a forward, swap or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness other hedging transaction of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 milliontype, unless entered into for bona fide hedging purposes;
(v) grants (A) rights of first refusaleach contract containing any non-compete, rights of first negotiation exclusivity or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary type of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset provision that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or materially restricts the ability of the Company Parent or any of its Subsidiaries to declare compete in any line of business or pay dividends with any Person or make distributions in respect geographic area;
(vi) each contract pursuant to which Parent or any Subsidiary of their Parent may be obligated to issue or repurchase any Parent Capital Stock or any capital stock, partner interests, membership interests stock or other equity interestsinterests in any Subsidiary of Parent;
(viiivii) is a material each partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnershipventure, limited liability company or joint venture in strategic alliance agreement to which the Company owns, directly Parent or indirectly, any voting or economic interest a Subsidiary of 15% or more and has invested or Parent is contractually required to invest in excess of $100 million, a party (other than with respect to any wholly-such agreement solely between or among Parent and its wholly owned Subsidiaries and/or wholly owned Subsidiaries of the Operating Partnership); and
(viii) each contract between or among Parent or any Subsidiary of Parent, on the one hand, and Parent Manager or any officer, director or affiliate (other than a wholly owned Subsidiary of Parent or the Company or wholly-owned Subsidiary Operating Partnership) of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company Parent or any of its Subsidiaries has or any liability of their respective “associates” or “immediate family” members (as such terms are defined in excess Rule 12b-2 and Rule 16a-1 of $100 million in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOAthe Exchange Act) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be set forth Parent Manager, on Section 3.21(a)(xi) of the Company Disclosure Schedulesother hand.
(b) Each such Contract described Collectively, the contracts set forth in clauses (iSection 5.16(a) through (x) above is are herein referred to herein as the “Parent Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a “Parent Material Contract”. Each Material Adverse Effect, each Parent Contract is a valid legal, valid, binding and legally binding obligation enforceable in accordance with its terms on Parent and each of the Company and its Subsidiaries as applicable that is a party thereto and, to the knowledge of the CompanyParent, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiaryeffect, in each casesubject, subject as to enforceability, to Creditors’ Rights, except . Except as would notnot reasonably be expected to have, individually or in the aggregate, be reasonably likely to have a Company Parent Material Adverse Effect, and neither the Company Parent nor any of its Subsidiaries, Subsidiaries is in breach or default under any Parent Contract nor, to the knowledge of the CompanyParent, is any other party to a Material any such Parent Contract is in breach or default thereunder. Complete and accurate copies of each Parent Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to the Company. Since January 1, 2022, neither Parent nor any of its Subsidiaries has received written notice of any material violation of or material default under any provision of, or in default under, any Material Parent Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parent.
Appears in 3 contracts
Sources: Merger Agreement (Arlington Asset Investment Corp.), Merger Agreement (Ellington Financial Inc.), Merger Agreement (Ellington Financial Inc.)
Material Contracts. (a) Except for this Agreement, as As of the date hereofof this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) thatby:
(i) would be required to be filed by the Company as a any “material contract” (as such term is defined in item Item 601(b)(10) of Regulation S-K of promulgated by the SEC) (other than any Company Benefit Plan);
(ii) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection Contract with the acquisition 50 largest customers of the Company and its Subsidiaries, taken as a whole, based on budgeted receipts for the fiscal year ended December 31, 2018 (the “Major Customers”) that expressly imposes any material restriction on the right or disposition by ability of the Company or any of its Subsidiaries to compete with any other Person or solicit any client or customer and, in each case, that following the Closing will materially restrict the ability of any business which payment obligations are Parent or would reasonably be expected its Subsidiaries (other than the Surviving Company and its Subsidiaries) to be material to the Companyso compete or solicit;
(iii) (A) limits in any material respect either the type of business in which Contract with a Major Customer that expressly obligates the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after following the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective TimeClosing, Parent or its Subsidiaries Subsidiaries) to conduct business with any third party on a preferential or (C) grants exclusive basis or that contains “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiariessimilar covenants;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, any Company employment agreement with any current executive officer or any guarantee of, indebtedness for borrowed money current member of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 millionBoard;
(v) grants (A) rights of first refusalany Contract entered into on or after January 1, rights of first negotiation 2015 that is a settlement agreement or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than includes a settlement agreement entered into in connection with a Proceeding and that materially restricts the Company, a wholly-owned Subsidiary operation of the Company or a wholly-owned Subsidiary business of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(viivi) limits any Contract relating to Indebtedness (other than intercompany Indebtedness owed by the Company or restricts any wholly owned Subsidiary to any other wholly owned Subsidiary, or by any wholly owned Subsidiary to the ability Company) of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $1,000,000;
(vii) any Contract that grants any right of first refusal, right of first offer or similar right with respect to declare any material assets, rights or pay dividends properties of the Company or make distributions in respect of their capital stock, partner interests, membership interests or other equity interestsits Subsidiaries;
(viii) is any Contract with the twenty largest vendors of the Company and its Subsidiaries, taken as a whole, with respect to the fiscal year ended December 31, 2017 and any Contract with the twenty largest customers of the Company and its Subsidiaries, taken as a whole, based on budgeted receipts for the fiscal year ended December 31, 2018 (the “Top Customers”), in each case based on amounts paid to such vendor or received from such customer during such period;
(ix) any Contract entered into on or after January 1, 2015 that provides for the acquisition or disposition of any assets (other than acquisitions or dispositions of sale in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) or capital stock or other equity interests of any Person, and with any outstanding obligations as of the date of this Agreement, in each case with a value in excess of $1,000,000;
(x) any material partnershipjoint venture, partnership or limited liability company, joint venture company agreement or other similar agreement or arrangement Contract relating to the formation, creation, operation, management or control of any partnershipjoint venture, partnership or limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 millioncompany, other than with respect to any wholly-owned Subsidiary of such Contract solely between the Company and its wholly owned Subsidiaries or wholly-among the Company’s wholly owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company or any of its Subsidiaries has any liability in excess of $100 million in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI)Subsidiaries; orand
(xi) is a any Contract with an affiliate or other Person that would be required to be set forth on Section 3.21(a)(xidisclosed under Item 404(a) of Regulation S-K promulgated under the Company Disclosure Schedules.
(b) Each such Contract described Exchange Act. All contracts of the types referred to in clauses (i) through (xxi) above is are referred to herein as a “Company Material ContractContracts.”. Each Material Contract is a valid and legally binding obligation
(b) Neither the Company nor any Subsidiary of the Company and its Subsidiaries as applicable is in material breach of or default in any respect under the terms of any Company Material Contract and, to the knowledge of the Company, as of the date hereof, no other party to any Company Material Contract is in material breach of or default in any respect under the terms of any Company Material Contract, and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s knowledge, prior to the date hereof through the action or inaction of any third party, that with notice or the lapse of time or both would constitute a material breach of or default or result in the termination of or a right of termination or cancelation thereunder, accelerate the performance or obligations required thereby, or result in the loss of any material benefit under the terms of any Company Material Contract. To the knowledge of the Company, each Company Material Contract (i) is a valid and binding obligation of the Company or the Subsidiary of the Company that is party thereto and of each other party thereto, and (ii) is in full force and effect and enforceable by effect, subject to the Company or the applicable SubsidiaryEnforceability Exceptions, in each case, subject to Creditors’ Rights, except as would notnot be material to the Company and its Subsidiaries, individually or in taken as a whole. There are no disputes pending or, to the aggregateCompany’s knowledge, be reasonably likely threatened with respect to have a any Company Material Adverse EffectContract, and neither the Company nor any of its Subsidiaries, nor, to the knowledge Subsidiaries has received any written notice of the Company, intention of any other party to a Company Material Contract is in breach to terminate for default, convenience or violation of any provision of, or in default underotherwise, any Company Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or defaultin each case, except for breachesas would not be material to the Company and its Subsidiaries, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have taken as a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parentwhole.
Appears in 3 contracts
Sources: Merger Agreement (Synnex Corp), Merger Agreement (Synnex Corp), Merger Agreement (Convergys Corp)
Material Contracts. (a) Except for this Agreement, the Confidentiality Agreement, and the Contracts filed as exhibits to publicly available Company Reports, as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) that:
(i) that would be required to be filed by the Company as a “material contract” (as such term is defined in item pursuant to Item 601(b)(10) of Regulation S-K of under the SEC)Securities Act;
(ii) includes pursuant to which the Company or any Subsidiary of the Company has any material continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) other contingent payment obligations arising in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Companybusiness;
(iii) containing any standstill or similar provision remaining in effect pursuant to which the Company or any Subsidiary of the Company has agreed not to acquire securities or material assets of another Person;
(iv) that (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Significant Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after following the Effective TimeMerger, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(ivv) that (A) is an indenture, loan or credit Contract, loan note, mortgage Contract Contract, letter of credit or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any Subsidiary of its Subsidiaries the Company of such the indebtedness of any person Person other than the Company or a wholly-wholly owned Subsidiary of the Company in excess of $100 millionCompany;
(vvi) that grants with respect to any asset that is material to the Company or any of its Subsidiaries (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person Person (other than the Company, Company or a wholly-wholly owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company);
(vivii) that was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(viiviii) limits limiting or restricts restricting the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viiiix) pursuant to which (A) the Company or any of its Subsidiaries grants to any third party any license, release, covenant not to ▇▇▇ or similar right with respect to material Intellectual Property or (B) the Company or any of its Subsidiaries receives a license, release, covenant not to ▇▇▇ or similar right with respect to any material Intellectual Property owned by a third party (other than generally commercially available software in object code form);
(x) that is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 1510% or more and has invested or is contractually required to invest in excess of $100 millionmore, other than with respect to any wholly-wholly owned Subsidiary of the Company or wholly-owned Subsidiary of the MLPCompany;
(ixxi) that relates to the acquisition or disposition of any business or assets (other than or the purchase and sale or supply of crude oil and products in the ordinary course of business consistent with past practice) any services pursuant to which the Company or any of its Subsidiaries has any liability in excess of $100 million 20,000,000 individually or $50,000,000 in any transaction or series of related transactionsthe aggregate;
(xxii) (A) that requires or is a material joint operating agreement (JOA) expected to require in the next year aggregate annual payments by or (B) defines to the Company or any material area of mutual interest (AMI)its Subsidiaries in excess of $20,000,000; or
(xixiii) to which the Company or any of its Subsidiaries is a Contract required party, or by which any of them are bound, the ultimate contracting party of which is a Governmental Entity (including any subcontract with a prime contractor or other subcontractor who is a party to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedules.
(b) any such contract). Each such Contract described in clauses (i) through (xxiii) above is referred to herein as a “Company Material Contract”. .” Each Company Material Contract (and each Contract that would be a Company Material Contract but for the exception of having been filed as an exhibit to a publicly available Company Report) is a valid and legally binding obligation of on the Company and its Subsidiaries as applicable and, to the knowledge Knowledge of the Company, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effecteffect, and neither the Company nor any of its Subsidiaries, nor, to the knowledge Knowledge of the Company, any other party to a Company Material Contract is in breach or violation of any provision of, or in default under, any Company Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have result in a Company Material Adverse Effect. A true, complete and accurate copy of each Company Material Contract as of the date of this Agreement has previously been delivered made available to Parent.
Appears in 3 contracts
Sources: Merger Agreement (Cleveland-Cliffs Inc.), Merger Agreement (Cleveland-Cliffs Inc.), Merger Agreement (Ak Steel Holding Corp)
Material Contracts. (a) Except for this Agreement, as set forth in the exhibit index of the date hereofCompany’s Annual Report on Form 10-K for the fiscal year ended May 26, 2007 and as permitted pursuant to Section 6.1, neither the Company nor any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) that:
(i) would be required any agreement relating to be filed the incurring of Indebtedness by the Company or any of its Subsidiaries in an amount in excess of $1,000,000 in the aggregate, including any such agreement which contains provisions that restrict, or may restrict, the conduct of business of the issuer thereof as a currently conducted (collectively, “Instruments of Indebtedness”); (ii) any “material contract” (as such term is defined in item Item 601(b)(10) of Regulation S-K of the SEC);
; (iiiii) includes any continuing non-competition or exclusive dealing agreement, or any other contingent payment obligations agreement or obligation which purports to limit or restrict in any respect (including A) the ability of the Company or its Subsidiaries to solicit customers or (B) the manner in which, or the localities in which, all or any “earnportion of the business of the Company and its Subsidiaries or, following consummation of the transactions contemplated by this Agreement, Parent and its Subsidiaries, is or would be conducted, or any non-out” competition or indemnification obligationsexclusive dealing agreement, or any other agreement or obligation of the type described in (A) arising or (B) of this clause (iii) which following the Closing would purport to apply to Parent or any of its Affiliates other than the Company and its Subsidiaries; (iv) any agreement providing for the indemnification, in connection excess of $2,000,000, by the Company or a Subsidiary of the Company of any Person other than standard form indemnity provisions in agreements with the acquisition or disposition by customers of the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to entered into in the Company;
(iii) (A) limits in any material respect either the type ordinary course of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status consistent with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
past practice; (v) grants (A) rights of first refusal, rights of first negotiation any joint venture or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
partnership agreement; (vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company agreement that grants any right of first refusal or any right of its Subsidiaries;
(vii) first offer or similar right or that limits or restricts purports to limit the ability of the Company or any of its Subsidiaries to declare own, operate, sell, transfer, pledge or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control otherwise dispose of any partnershipmaterial assets or business; (vii) any contract or agreement providing for any payments that are conditioned, limited liability company in whole or joint venture in which the Company ownspart, directly or indirectly, any voting or economic interest on a change of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary control of the Company or wholly-owned Subsidiary any of the MLP;
its Subsidiaries; (viii) any collective bargaining agreement; (ix) relates any agreement material to the acquisition Company and its Subsidiaries, taken as a whole, pertaining to the use of or disposition of granting any business right to use or assets practice any rights under any Intellectual Property; (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practicex) any agreements pursuant to which the Company or any of its Subsidiaries has leases any liability material real property or leases any material real property to third parties; (xi) any contract or agreement material to the Company and its Subsidiaries, taken as a whole, providing for the outsourcing or provision of servicing of customers, technology or product offerings of the Company or its Subsidiaries; (xii) any contract relating to the supply of any material item used by the Company or a Subsidiary that is a sole source of supply; (xiii) any contract or other agreement entered into since January 1, 1997 with respect to the acquisition or divestiture of all or any portion of a business; or (xiv) any other contract or other agreement not made in the ordinary course of business consistent with past practice that (A) is not within any of the other categories described in this Section 4.9(a) but is material to the Company and its Subsidiaries taken as a whole, (B) would reasonably be expected to result in revenues, receipts, liabilities or expenditures, or otherwise involve an amount, in excess of $100 million in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) 5,000,000 per year or (BC) defines would reasonably be expected to materially delay or prevent the consummation of the Offer, the Merger or any material area of mutual interest the transactions contemplated by this Agreement (AMI); or
(xi) is a Contract required to be the agreements, contracts and obligations set forth on Section 3.21(a)(xi) in the exhibit index of the Company Disclosure Schedules.
(b) Each such Contract described Company’s Annual Report on Form 10-K for the fiscal year ended May 26, 2007 and the agreements, contracts and obligations listed in clauses (i) through (xxiv) above is being referred to herein as “Company Material Contracts”). None of the Company Material Contracts contains a “most favored nation” clause or other term providing preferential pricing or treatment to a third party. Section 4.9(a) of the Company Disclosure Schedule sets forth as of the date hereof all of the Company Material Contract”Contracts. True, correct and complete copies of each Company Material Contract have been made available to Parent.
(b) Each Company Material Contract is a valid and legally binding obligation on the Company (or, to the extent a Subsidiary of the Company and its Subsidiaries as applicable is a party, such Subsidiary) and, to the knowledge of the Company, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to a thereto, and each Company Material Contract is in full force and effect. Neither the Company nor any of its Subsidiaries is in breach or violation default under any Company Material Contract or is aware of any provision of, or in default under, any Material Contract, and no event has occurred that, condition that with or without notice, lapse the passage of time or both, the giving of notice or both would constitute result in such a breach, violation breach or default, except for breaches, violations in each case where any such breaches or defaults that would not, individually or in the aggregate, reasonably be expected to have result in a Material Adverse Effect on the Company. Neither the Company nor any Subsidiary of the Company knows of, or has received written notice of, any breach or default under (nor, to the knowledge of the Company, does there exist any condition which with the passage of time or the giving of notice or both would result in such a breach or default under) any Company Material Contract by any other party thereto except where any such violation or default would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse EffectEffect on the Company.
(c) There are no provisions in any Instrument of Indebtedness that provide any restrictions on the repayment of the outstanding Indebtedness thereunder, or that require that any financial payment (other than payment of outstanding principal and accrued interest) be made in the event of the repayment of the outstanding Indebtedness thereunder prior to expiration. A copy “Indebtedness” means, with respect to any Person, all obligations (including all obligations in respect of each Material Contract has previously principal, accrued interest, penalties, prepayment penalties, fees and premiums) of such Person (i) for borrowed money (including overdraft facilities), (ii) evidenced by notes, bonds, debentures or similar instruments, (iii) for the deferred purchase price of property, goods or services (other than trade payables or accruals incurred in the ordinary course of business), (iv) under capital leases (in accordance with GAAP), (v) in respect of letters of credit and bankers’ acceptances, (vi) under interest rate or currency swap or other derivative or hedging instruments and transactions (valued at the termination value thereof), (vii) secured by any Lien on property or assets owned by such Person, whether or not the obligations secured thereby have been delivered assumed, (viii) all obligations of such Person under any sale and lease back transaction, agreement to Parentrepurchase securities sold or other similar financing transaction and (ix) in the nature of guarantees of the obligations described in clauses (i) through (viii) above of any other Person.
Appears in 3 contracts
Sources: Merger Agreement (Raven Acquisition Corp.), Merger Agreement (Danaher Corp /De/), Merger Agreement (Tektronix Inc)
Material Contracts. (a) Except for this Agreementas set forth in Section 3.20 of the Company Disclosure Schedule, as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) that:
Contract that (i) would be required to be filed by the Company as is a “material contract” (as such term is defined in item Item 601(b)(10) of Regulation S-K of promulgated by the SEC);
, (ii) includes any continuing would, after giving effect to the Merger, materially limit or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with restrict the acquisition or disposition by the Company Surviving Corporation or any of its Subsidiaries or any successor thereto, from engaging or competing in any line of business or in any business which payment obligations are geographic area that it currently engages in or would reasonably be expected that contains exclusivity or non-solicitation provisions with respect to be material to the Company;
customers, (iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or otherwise restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests to its shareholders or other equity interests;
(viiiiv) is a material partnership, limited liability company, joint venture provides for the operation or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary material operating assets of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of its Subsidiaries by any business or assets (person other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company or any its Subsidiaries. Each Contract of its Subsidiaries has any liability the type described in excess of $100 million in any transaction this Section 3.20, whether or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be not set forth on Section 3.21(a)(xi) 3.20 of the Company Disclosure Schedules.
(b) Each such Contract described in clauses (i) through (x) above Schedule is referred to herein as a “Company Material Contract”. .” Each Company Material Contract is a valid and legally binding obligation of the Company and or its Subsidiaries as applicable Subsidiary party thereto enforceable against the Company or its Subsidiary party thereto and, to the knowledge of the Company, each other party thereto, in accordance with its terms (except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies 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, is in full force and effect effect, and enforceable by each of the Company or and each of its Subsidiaries which is a party thereto has performed in all material respects all obligations required to be performed by it to the applicable Subsidiarydate hereof 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, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, reasonably be reasonably likely expected to have a Company Material Adverse Effect, and neither . None of the Company nor or any of its Subsidiaries, nor, to the Subsidiaries has knowledge of the Company, any other party to a Material Contract is in breach or violation of any provision of, or in default underhas received written notice of, any Material Contract, and no event has occurred that, violation of or default under (or any condition which with or without notice, lapse the passage of time or both, the giving of written notice would constitute cause such a breach, violation of or defaultdefault 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 breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect or, after giving effect to the Merger, a Parent Material Adverse Effect. A copy “Contract” or “contract” means any written agreement, undertaking, contract, commitment, lease, license, permit, franchise, concession, deed of each Material Contract has previously been delivered to Parenttrust, contract, note, bond, mortgage, indenture, arrangement or other instrument or obligation.
Appears in 3 contracts
Sources: Merger Agreement (DPL Inc), Merger Agreement (DPL Inc), Merger Agreement (Aes Corp)
Material Contracts. (a) Except for this Agreementas set forth in Section 4.17 of Parent Disclosure Schedule, as of the date hereof, neither the Company Parent nor any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) that:
Contract that (i) would be required to be filed by the Company as is a “material contract” (as such term is defined in item Item 601(b)(10) of Regulation S-K of promulgated by the SEC);
, (ii) includes any continuing would, after giving effect to the Merger, limit or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with restrict the acquisition or disposition by the Company Surviving Corporation or any of its Subsidiaries or any successor thereto, from engaging or competing in any line of business or in any business which payment obligations are geographic area that it currently engages in or would reasonably be expected that contains exclusivity or non-solicitation provisions with respect to be material to the Company;
customers, (iii) (A) limits in any material respect either or otherwise restricts the type ability of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests to its stockholders or other equity interests;
(viiiiv) is a material partnership, limited liability company, joint venture provides for the operation or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company operating assets of Parent or joint venture in which the Company owns, directly or indirectly, its Subsidiaries by any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, person other than with respect to any wholly-owned Subsidiary Parent or its Subsidiaries. Each Contract of the Company type described in this Section 4.17, whether or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company or any of its Subsidiaries has any liability in excess of $100 million in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be not set forth on Section 3.21(a)(xi) 4.17 of the Company Parent Disclosure Schedules.
(b) Each such Contract described in clauses (i) through (x) above Schedule is referred to herein as a “Parent Material Contract”. .” Each Parent Material Contract is a valid and legally binding obligation of the Company and Parent or its Subsidiaries as applicable Subsidiary party thereto enforceable against Parent or its Subsidiary party thereto and, to the knowledge of the CompanyParent, each other party thereto, in accordance with its terms (except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies 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, is in full force and effect effect, and enforceable each of Parent and each of its Subsidiaries which is a party thereto has performed in all material respects all obligations required to be performed by it to the Company or date hereof under each Parent Material Contract and, to the applicable Subsidiaryknowledge of Parent, each other party to each Parent Material Contract has performed in all material respects all obligations required to be performed by it under such Parent Material Contract, except, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, reasonably be reasonably likely expected to have a Company Parent Material Adverse Effect, and neither the Company nor . None of Parent or any of its Subsidiaries, nor, to the Subsidiaries has knowledge of the Company, any other party to a Material Contract is in breach or violation of any provision of, or in default underhas received written notice of, any Material Contract, and no event has occurred that, violation of or default under (or any condition which with or without notice, lapse the passage of time or both, the giving of written notice would constitute cause such a breach, violation of or defaultdefault under) any Parent Material Contract to which it is a party or by which it or any of its properties or assets is bound, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Parent Material Adverse Effect or, after giving effect to the Merger, a Parent Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parent.
Appears in 3 contracts
Sources: Merger Agreement (Vertro, Inc.), Merger Agreement (Inuvo, Inc.), Merger Agreement (Vertro, Inc.)
Material Contracts. (ai) Except for this AgreementContracts set forth in Section 3.1(k) of its Disclosure Letter, as of the date hereofof this Agreement, neither the Company it nor any of its Subsidiaries Subsidiaries, nor any of their respective assets, businesses or operations, is a party to, or is bound or affected by, or receives benefits under, (A) any Contract relating to the borrowing of money by it or bound any of its Subsidiaries or the guarantee by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) that:
(i) would be required to be filed by the Company as a “material contract” (as such term is defined in item 601(b)(10) of Regulation S-K of the SEC);
(ii) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by the Company it or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Company;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person obligation (other than the CompanyContracts pertaining to fully-secured repurchase agreements, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation trade payables and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement Contracts relating to the formationborrowings, creation, operation, management deposit-takings or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products guarantees made in the ordinary course of business consistent with past practice), (B) pursuant to which any Contract containing a non-compete or client or customer non-solicit requirement or any other provisions that limit the Company ability of it or any of its Subsidiaries has to compete in any liability line of business or with any Person, or that involve any restriction of the geographic area in which, or method by which, it or any of its Subsidiaries may carry on its business (other than as may be required by Law or any Governmental Authority) or which requires referrals of business or requires it or any of its Affiliates to make available investment opportunities to any Person on a priority, equal or exclusive basis, (C) any Contract with respect to the employment of any directors, executive officers or employees, or with any consultants that are natural Persons involving the payment of U.S.$500,000 or more per annum, (D) any Contract which, upon the execution or delivery of this Agreement or consummation of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional acts or events) result in any payment (including severance payment) becoming due from it or any of its Subsidiaries, (E) any Contract that could reasonably be expected to prohibit, delay or materially impair the consummation of any of the Transactions, (F) any Contract (or group of Contracts with the same party (or its Affiliates) involving similar transactions) that involves expenditures or receipts by it or any of its Subsidiaries in excess of $100 million U.S.$5,000,000 per year not entered into in the ordinary course of business consistent with past practice, (G) any transaction Contract with an Affiliate, (H) any Contract that grants any right of first refusal, right of first offer or series similar right with respect to the sale or other transfer of related transactions;
any material assets, rights or properties of it or its Subsidiaries or (I) any Contract with any Governmental Authority (other than routine or customary Contracts with any self-regulatory body). With respect to each of its Contracts required to be disclosed in its Disclosure Letter pursuant to this Section 3.1(k)(i): (w) each such Contract is in full force and effect; (x) neither it nor any of its Subsidiaries is in Default thereunder; (y) neither it nor any of its Subsidiaries has repudiated or waived any material provision of any such Contract; and (z) no other party to any such Contract is, to its knowledge, in Default thereunder in any material respect.
(ii) All interest rate swaps, caps, floors, option agreements, futures and forward contracts, and other similar risk management arrangements, whether entered into for its own account or for the account of one or more of its Subsidiaries or their respective customers, were entered into (A) is a material joint operating agreement (JOA) or in accordance with prudent business practices and all applicable Laws and (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required with counterparties believed to be set forth on Section 3.21(a)(xi) financially responsible, and each of the Company Disclosure Schedules.
(b) Each such Contract described in clauses (i) through (x) above them is referred to herein as a “Material Contract”. Each Material Contract is a valid and legally binding obligation of the Company and enforceable against it or its Subsidiaries as applicable and, to its knowledge, the knowledge applicable counterparties thereto, in accordance with its terms (except in all cases as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or similar Laws affecting the enforcement of creditors’ rights generally and except that the availability of the Company, each other party theretoequitable remedy of specific performance or injunctive relief is subject to the discretion of the court before which any proceeding may be brought), and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company effect. Neither it nor any of its Subsidiaries, nor, nor to the knowledge of the Companyits knowledge, any other party to a Material Contract thereto, is in breach or violation Default of any provision of, of its obligations under any such agreement or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parentarrangement.
Appears in 3 contracts
Sources: Transaction Agreement (Saieh Bendeck Alvaro), Transaction Agreement (Corpbanca/Fi), Transaction Agreement (Corpbanca/Fi)
Material Contracts. (a) Except for this Agreementas set forth in the BDC Disclosure Schedule, as of the date hereofof this Agreement, neither the Company BDC nor any of its Subsidiaries Subsidiaries, nor any of their respective assets, businesses, or operations, is a party to to, or is bound by any agreementor affected by, leaseor receives benefits under, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) that:
(i) would be required any contract relating to be filed the borrowing of money by BDC or any of its Subsidiaries or the Company as a “material contract” (as such term is defined in item 601(b)(10) of Regulation S-K of the SEC);
(ii) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition guarantee by the Company BDC or any of its Subsidiaries of any business which payment obligations are such obligation (other than contracts pertaining to fully-secured repurchase agreements, and trade payables, and contracts relating to borrowings or would reasonably be expected to be material to guarantees made in the Company;
(iii) (A) limits in any material respect either the type ordinary course of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisionsbusiness), (Bii) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset contract containing covenants that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts limit the ability of the Company BDC or any of its Subsidiaries to declare compete in any line of business or pay dividends with any Person, or make distributions in respect of their capital stock, partner interests, membership interests to hire or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to engage the formation, creation, operation, management or control services of any partnershipPerson, limited liability company or joint venture that involve any restriction of the geographic area in which the Company ownswhich, directly or indirectlymethod by which, BDC or any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, its Subsidiaries may carry on its business (other than as may be required by Law or any Governmental Authority) (as each are hereinafter defined), or any contract that requires it or any of its Subsidiaries to deal exclusively or on a “sole source” basis with another party to such contract with respect to the subject matter of such contract, (iii) any wholly-owned Subsidiary of the Company contract for, with respect to, or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition that contemplates, a possible merger, consolidation, reorganization, recapitalization or disposition of any other business combination, or assets (other than the purchase and asset sale or sale of crude oil and products equity securities not in the ordinary course of business consistent with past practice, with respect to BDC or any of its Subsidiaries, (iv) pursuant any lease of real or personal property providing for annual lease payments by or to BDC or its Subsidiaries in excess of $25,000 per annum other than financing leases entered into in the ordinary course of business in which the Company BDC or any of its Subsidiaries has is the lessor, or (v) any liability contract that involves expenditures or receipts of BDC or any of its Subsidiaries in excess of $100 million 25,000 per year not entered into in any transaction the ordinary course of business consistent with past practice. The contracts of the type described in the preceding sentence, whether or series not in effect as of related transactions;
(x) the date of this Agreement, shall be deemed “Material Contracts” hereunder. With respect to each of BDC’s Material Contracts that is disclosed in the BDC Disclosure Schedule, or would be required to be so disclosed if in effect on the date of this Agreement: (A) each such Material Contract is a material joint operating agreement (JOA) or in full force and effect; (B) defines neither BDC nor any of its Subsidiaries is in material default thereunder with respect to each Material Contract, as such term or concept is defined in each such Material Contract; (C) neither BDC nor any of its Subsidiaries has repudiated or waived any material area provision of mutual interest any such Material Contract; and (AMI); or
(xiD) is a no other party to any such Material Contract required is, to be set forth on Section 3.21(a)(xi) BDC’s knowledge, in material default in any material respect. True copies of all Material Contracts, including all amendments and supplements thereto, are attached to the Company BDC Disclosure SchedulesSchedule.
(b) Each such Contract described in clauses (i) through (x) above is referred to herein as a “Material Contract”. Each Material Contract is a valid and legally binding obligation of the Company and its Subsidiaries as applicable and, to the knowledge of the Company, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company Neither BDC nor any of its SubsidiariesSubsidiaries have entered into any interest rate swaps, norcaps, to the knowledge of the Companyfloors, any other party to a Material Contract is in breach or violation of any provision ofoption agreements, futures and forward contracts, or in default underother similar risk management arrangements, any Material Contract, and no event has occurred that, with whether entered into for BDC’s own account or without notice, lapse for the account of time one or both, would constitute such a breach, violation more of its Subsidiaries or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parenttheir respective customers.
Appears in 3 contracts
Sources: Merger Agreement (Merchants Bancorp), Merger Agreement (Merchants Bancorp), Merger Agreement (Merchants Bancorp)
Material Contracts. (a) Except for this Agreement, the Company Benefit Plans, the Company Real Property Leases and as set forth on Section 3.18(a) of the date hereofCompany Disclosure Schedule, neither the Company nor any of its Subsidiaries is a party to or bound by any agreementby, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) thatas of the date of this Agreement:
(i) would be required to be filed by the Company as a “material contract” (as such term is defined in item 601(b)(10) of Regulation Sany joint venture, co-K of the SEC);
(ii) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Company;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions)development, (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which or partnership that is material to the business of the Company ownsand its Subsidiaries, directly taken as a whole;
(ii) any Contract imposing any material restriction on the right or indirectlyability of the Company or any of its Subsidiaries to compete with any other Person or operate in a geographical area that would be binding on Parent or any of its Subsidiaries after the Closing;
(iii) any Contract that is an indenture, credit or loan agreement, security agreement, guarantee, note, mortgage or other Contract providing for or securing Indebtedness for borrowed money, deferred payment or the imposition of any voting Lien other than Permitted Liens (in each case, whether incurred, assumed, guaranteed or economic interest of 15% or more and has invested or is contractually required to invest secured by any asset) in excess of $100 million5,000,000 (each, other than with respect a “Company Indebtedness Contract”);
(iv) any Contract pursuant to any wholly-owned Subsidiary of which the Company or whollyany of its Subsidiaries (A) is granted rights in any third-party Intellectual Property (excluding any commercially available, unmodified off-the-shelf software licensed for annual aggregate license fees of less than $250,000) or (B) has granted to any Person any licenses or rights under any Company Intellectual Property owned Subsidiary by the Company or any of the MLP;
its Subsidiaries (ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products excluding nonexclusive license grants in the ordinary course of business consistent with past practice);
(v) any settlement, conciliation or similar agreement (x) with any Person that would reasonably be expected to be material to the Company and its Subsidiaries taken as a whole or (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $500,000 after the date of this Agreement;
(vi) any Contract that contains any standstill or similar agreement pursuant to which the Company or any of its Subsidiaries has agreed not to acquire assets or securities of another Person that would be binding on Parent or any liability of its Subsidiaries after the Closing;
(vii) any Contract that (A) relates to the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of any Person other than the Company or any of its Subsidiaries for aggregate consideration in excess of $100 million 3,000,000 or pursuant to which the Company or any of its Subsidiaries has continuing material “earn out” or other similar material contingent payment obligations outstanding; or (B) gives any Person the right to acquire any assets of the Company or its Subsidiaries (or any interests therein) after the date hereof with a total consideration of more than $3,000,000;
(viii) any Contract that provides for aggregate payments by or to the Company and/or its Subsidiaries in excess of $7,500,000 in any transaction 12-month period, other than any such Contracts that may be cancelled, terminated or series withdrawn upon notice of related transactionsninety (90) days or less without material liability or continuing obligation on the part of the Company or any of its Subsidiaries;
(ix) any Contract that obligates the Company or its Subsidiaries to conduct business on an exclusive basis with any Person or that contains “most favored nation” or similar covenants, in each case other than any such Contracts that may be cancelled, terminated or withdrawn upon notice of ninety (90) days or less without material liability or continuing obligation on the part of the Company or any of its Subsidiaries;
(x) any Contract containing continuing indemnification rights or obligations (A) is other than those indemnification obligations that would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries taken as a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMIwhole); or
(xi) any Contract with a Governmental Entity that is material to the Company and its Subsidiaries taken as a Contract required to be set forth on Section 3.21(a)(xi) whole. All of the Contracts of the types referred to in this Section 3.18(a) are referred to herein as “Company Disclosure SchedulesMaterial Contracts.”
(b) Each Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract where such Contract described in clauses (i) through (x) above is referred breach or default would reasonably be expected to herein be material to the Company and its Subsidiaries taken as a “whole. To the knowledge of the Company, no other party to any Company Material Contract”Contract is in breach of or default under the terms of any Company Material Contract where such breach or default would reasonably be expected to be material to the Company and its Subsidiaries taken as a whole. Each Company Material Contract is a valid and legally binding obligation of the Company and its Subsidiaries as applicable or the Subsidiary of the Company which is party thereto and, to the knowledge of the Company, of each other party thereto, and is in full force and effect and enforceable by against the Company or the applicable Subsidiary, Subsidiary of the Company which is party thereto in each case, subject to Creditors’ Rightsaccordance with its terms, except as would notsuch enforceability (i) may be limited by applicable bankruptcy, individually insolvency, reorganization, moratorium and other similar Laws affecting or relating to creditors’ rights generally, and (ii) is subject to the rules governing the availability of specific performance, injunctive relief or other equitable remedies and general principles of equity, regardless of whether considered in a proceeding in equity or at law. As of the aggregatedate of this Agreement, be reasonably likely the Company has provided to have a Parent true and complete copies of all Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to ParentContracts.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (NewPage Holdings Inc.), Merger Agreement (Verso Paper Corp.)
Material Contracts. (a) Except for For purposes of this Agreement, as a “Material Contract” means any Contract (or group of the date hereof, neither related Contracts) to which the Company nor or any of its Subsidiaries is a party to or bound by which any agreement, lease, easement, license, contract, note, mortgage, indenture of their respective properties or other legally binding obligation (“Contract”) thatassets are bound:
(i) would be that is filed or required to be filed by the Company as a “material contract” (as such term is defined under Applicable Securities Laws in item 601(b)(10) of Regulation S-K of the SEC)Canada;
(ii) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Company;
(iii) that (A) limits purports to limit or otherwise restrict in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare compete in any business or pay dividends geographic area (or make distributions in respect of their capital stockthat, partner interestsfollowing the Arrangement, membership interests would by its terms apply such limits or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating restrictions to the formationParent or its Subsidiaries), creation(B) grants any exclusive rights, operation(C) contains a “most favored nation” or similar provision, management (D) includes any “take or control of any partnershippay” or “requirements” obligation, limited liability company (E) otherwise purports to prohibit or joint venture in which limit the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary right of the Company or wholly-owned Subsidiary any of its Subsidiaries to develop, license, sell or distribute any products or services or (F) that purports to limit or otherwise restrict the ability of the MLPCompany or its Subsidiaries to solicit for hire or to hire any person;
(ixiii) relates (A) containing any standstill, or similar agreement pursuant to which the Company or any of its Subsidiaries has agreed not to acquire assets or securities of another person, (B) containing a put, call, right of first refusal or similar right pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, or otherwise acquire or transfer, as applicable, any equity interests of any person or assets that have a fair market value or purchase price of more than $250,000 or (C) relating to the acquisition or disposition of any business or any material assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice(whether by merger, sale of shares or assets or otherwise);
(iv) that would prevent, materially delay or materially impede the Company’s ability to consummate the Transactions;
(v) that is between the Company or any of its Subsidiaries and any of their respective directors, officers, affiliates or any person beneficially owning 5% or more of the outstanding Common Shares;
(vi) that involves the payment or receipt by the Company or its Subsidiaries of royalties or other amounts in consideration for rights to practice any Intellectual Property of more than $250,000 in the aggregate;
(vii) (A) for the furnishing of services or the sale of products which involves, or would reasonably be expected in the future to involve, consideration in excess of $250,000 in any 12 month period, (B) for the receipt of services by a third party which involves payment by the Company or any of its Subsidiaries of consideration in excess of $250,000 in any 12 month period or which would reasonably be expected to involve payment by the Company or any of its Subsidiaries of consideration in excess of $250,000 in any future 12 month period during the term of such agreement or (C) that provides for future payment obligations by the Company or any of its Subsidiaries of $250,000 or more;
(viii) under which any of the Company or any of its Subsidiaries is a lessee of, or holds or uses, any equipment, machinery, vehicle or other tangible personal property owned by a third person which requires future annual payments in excess of $250,000;
(ix) pursuant to which the Company or any of its Subsidiaries has entered into a partnership, joint venture, collaboration or other similar arrangement with any liability in excess of $100 million in any transaction or series of related transactionsperson (other than intercompany agreements);
(x) for capital expenditures or the acquisition or construction of fixed assets which requires aggregate future payments in excess of $250,000;
(xi) pursuant to which the Company or any of its Subsidiaries agrees not to make use of any material right in any Intellectual Property owned by the Company or any of its Subsidiaries;
(xii) pursuant to which the Company or any of its Subsidiaries has outstanding indebtedness, or provides a guarantee in a principal amount in excess of $250,000;
(xiii) containing a settlement with respect to a Proceeding (whether commenced or threatened in writing) of any nature;
(xiv) which requires future payments by the Company or any of its Subsidiaries in excess of $50,000 per annum containing “change of control” or similar provisions (whether or not such payments or benefits are contingent upon the occurrence of any other event);
(xv) under which the Company or its Subsidiaries have received, or are entitled to receive, payment from any person for use in the research or development of any Product;
(xvi) under which the Company is obligated to make future payments of over $50,000 for the research or development of any Product;
(xvii) pursuant to which the Company, any of its Subsidiaries or any other party thereto has material continuing obligations, rights or interests relating to the research, development, distribution, supply, manufacture, marketing or co-promotion of, or collaboration with respect to any Product;
(xviii) any Company Lease;
(xix) any employment, contractor or consulting Contract with any Company employee with annual compensation in excess of Cdn.$100,000;
(xx) any Contract that provides for any change of control, severance or termination pay or other compensation or benefits related to termination of employment or services to the Company or any of its Subsidiaries;
(xxi) any collective bargaining agreement or other similar Contract with a union, works council, trade union or other labor relations entity;
(xxii) any Contract with any current or former officer or director of the Company or any of its Subsidiaries that contains unfulfilled obligations; or
(xxiii) any Contract of which the Company has knowledge to which any employee, consultant or independent contractor of the Company or a Subsidiary is bound that in any manner purports to (A) is a material joint operating agreement (JOA) restrict such employee’s, consultant’s or independent contractor’s freedom to engage in any line of business or activity or to compete with any other person, or (B) defines assign to any material area other person such employee’s, consultant’s or independent contractor’s rights to any Intellectual Property that relate to the business of mutual interest (AMI); orthe Company and its Subsidiaries.
(xib) is a Contract required to be set forth on Section 3.21(a)(xi13(b) of the Company Disclosure Schedules.
(bLetter contains a complete and accurate list of all Material Contracts to which the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets are bound, and identifies each subsection of Section 13(a) Each that describes such Contract described in clauses (i) through (x) above is referred to herein as a “Material Contract”. The Company has delivered or made available to the Parent true, correct and complete copies of the Material Contracts, including all amendments, supplements and modifications thereto. Each of the Material Contract Contracts is a valid and legally binding obligation of on the Company and or its Subsidiaries as applicable Subsidiary and, to the knowledge of the Company, each other party thereto, thereto and is in full force and effect effect. None of the Company, any of its Subsidiaries or, to the knowledge of the Company, any other party, is in breach of, or default under, in any material respect, any Material Contract, and enforceable no event has occurred that with notice or lapse of time or both would constitute such a breach or default thereunder in any material respect by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, noror, to the knowledge of the Company, any other party to a Material Contract is in thereto. Neither the Company nor any of its Subsidiaries has received any written notice or other communication regarding any actual or possible violation or breach of or violation of any provision ofdefault under, or in default underintention to cancel or modify, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parent.
Appears in 2 contracts
Sources: Arrangement Agreement (Privet Fund LP), Arrangement Agreement (Norsat International Inc.)
Material Contracts. (a) Except for this AgreementThe Company has made available to Parent (or Parent has otherwise had access to) true, correct and complete copies of each Contract to which the Company or any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries or any of their respective properties or assets is bound (other than any of the foregoing between the Company, the Company Subreits and any of their respective wholly owned Subsidiaries or between any wholly owned Subsidiaries of the Company or the Company Subreits), as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) that:
(i) would be is required to be filed by the Company as a “material contract” (as such term is defined in item pursuant to Item 601(b)(10) of Regulation S-K of promulgated under the SEC)Securities Act;
(ii) includes any continuing or other contingent payment obligations relates to (including any “earn-out” or indemnification obligationsA) arising in connection with the acquisition or disposition by Indebtedness of the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Company;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including except for Contracts relating to less than $30 million of Indebtedness in the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rightsaggregate, or (B) putsthe sale, calls securitization or similar rights, to any person (other than the Company, a wholly-owned Subsidiary servicing of the Company loans or a wholly-owned Subsidiary loan portfolios of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(iii) would materially restrict the ability of Parent or its Subsidiaries (including the Surviving Entity) to compete in any line of business that is material to Parent and its Subsidiaries or in any geographic territory that is material to Parent and its Subsidiaries;
(iv) limits, restricts or prohibits the Company or any of its Subsidiaries from entering into or participating in any transaction or arrangement involving the investment in the Company or any of its Subsidiaries by any Person;
(v) relates to the acquisition or disposition, directly or indirectly (by merger or otherwise), not yet consummated, of material assets or capital stock or other equity interests of another Person or any Company Real Property;
(vi) is a Real Property Lease relating to a Company Facility;
(vii) limits by its terms calls for aggregate payment or restricts receipt by the ability Company and its Subsidiaries under such Contract of more than $5 million per annum or $15 million over the remaining term of such Contract, other than Real Property Leases and the type of Contracts described in clause (ii) above and other than in the ordinary course of business procurement or sale Contracts for supplies of goods or services or Contracts that may be terminated without penalty upon ninety (90) days advance written notice or Contracts that cover the procurement or sale of supplies of goods or services;
(viii) could result in liability on the part of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stockany purchase price adjustment, partner interests, membership interests earn-out or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLPcontingent purchase price obligation;
(ix) relates is a Contract entered by the Company through its purchase department and that provides for (i) “most favored nation” rights with respect to existing or future Affiliates of the acquisition Company, or disposition (ii) provides for “exclusivity” or any similar requirements in favor of any business or assets (Person, other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practiceprocurement or sale Contracts for supplies of goods or services or Contracts; or
(x) obligates the Company to make any capital commitment or expenditure (including pursuant to which the Company any renovation, construction or any of its Subsidiaries has any liability development project) in excess of $100 5 million per annum, excluding any payment obligation budgeted for in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a the Company’s 2018 budget. Each Contract required to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedules.
(b) Each such Contract type described in clauses (i) through (x) above is referred to herein as a “Material Specified Contract.”. Each Material Contract is a valid and legally binding obligation of the Company and its Subsidiaries as applicable and, to the knowledge of the Company, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parent.
Appears in 2 contracts
Sources: Merger Agreement (Quality Care Properties, Inc.), Merger Agreement (Welltower Inc.)
Material Contracts. (a) Except for this Agreement, Section 4.20 of the Parent Disclosure Letter contains a complete and correct list, as of the date hereofof this Agreement, neither the Company nor of each Contract described below in this Section 4.20(a) under which Parent or any Parent Subsidiary has any current or future rights, responsibilities, obligations or liabilities (in each case, whether contingent or otherwise) or to which any of its Subsidiaries their respective properties or assets is a party subject, in each case as of the date of this Agreement (all Contracts of the type described in this Section 4.20(a) being referred to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (herein as the “ContractParent Material Contracts”) that:):
(i) would be required Any customer or client Contract that involves or that is reasonably likely to be filed by the Company as a “material contract” (as such term is defined involve consideration in item 601(b)(10) fiscal year 2015 in excess of Regulation S-K of the SEC)$2,000,000;
(ii) includes any continuing partnership, joint venture, strategic alliance or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any business collaboration Contract which payment obligations are or would reasonably be expected to be is material to the CompanyParent and its Subsidiaries, taken as a whole;
(iii) any Contract that (A) limits in any material respect purports to materially limit either the type of business in which Parent or its Subsidiaries (or, after the Effective Time, the Company or its Subsidiaries (or in which Parent Subsidiaries) or any of its Subsidiaries after the Effective Time) their respective affiliates may engage or the manner or locations geographic area in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company Parent or its Subsidiaries (or, after the Effective Time, Parent the Company or its Subsidiaries or (CSubsidiaries) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including their respective affiliates as a result of the Company and its Subsidiariesconsummation of the Transactions;
(iv) (A) is an indenture, loan each acquisition or credit Contract, loan note, mortgage divestiture Contract or licensing agreement that contains representations, covenants, indemnities or other Contract representing, obligations (including “earn-out” or any guarantee of, indebtedness for borrowed money other contingent payment obligations) that would reasonably be expected to result in the receipt or making of the Company or any Subsidiary of the Company future payments in excess of $100 million or 2,000,000 in the twelve (B12) is a guarantee by month period following the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 milliondate hereof;
(v) grants (A) rights each Contract relating to outstanding Indebtedness of first refusal, rights of first negotiation Parent or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company its Subsidiaries for borrowed money or any of its Subsidiaries;
financial guaranty thereof (viiwhether incurred, assumed, guaranteed or secured by any asset) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest an amount in excess of $100 million, 2,000,000 other than with respect to (A) Contracts solely among Parent and any wholly-owned Parent Subsidiary or a guarantee by Parent or a Parent Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
a Parent Subsidiary, (ixB) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products financial guarantees entered into in the ordinary course of business consistent with past practicepractice not exceeding $2,000,000, individually or in the aggregate (other than surety or performance bonds, letters of credit or similar agreements entered into in the ordinary course of business consistent with past practice in each case to the extent not drawn upon), and (C) any Contracts relating to Indebtedness explicitly included in the consolidated financial statements in the Parent Filings;
(vi) each Contract between Parent, on the one hand, and any officer, director or affiliate (other than a wholly-owned Parent Subsidiary) of Parent or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract pursuant to which Parent has an obligation to indemnify such officer, director, affiliate or family member;
(vii) any Contract (excluding licenses for commercially available off the Company shelf computer software that are generally available on standard terms for fees of no more than $100,000 annually or in the aggregate) under which Parent or any Parent Subsidiary is granted any license, option or other right or immunity (including a covenant not to be sued or right to enforce or prosecute any patents) with respect to any Intellectual Property rights of a third party, which Contract is material to Parent and the Parent Subsidiaries, taken as a whole;
(viii) any Contract (excluding licenses for commercially available off the shelf computer software that are generally available on standard terms for fees of no more than $100,000 annually or in the aggregate) under which Parent or any Parent Subsidiary has granted to a third party any license, option or other right or immunity (including a covenant not to be sued or right to enforce or prosecute any patents) with respect to any Intellectual Property rights (including any development thereof), which Contract is material to Parent and the Parent Subsidiaries, taken as a whole;
(ix) any shareholders, investors rights, registration rights or similar agreement or arrangement of Parent or any of its Subsidiaries has any liability in excess of $100 million in any transaction or series of related transactionsSubsidiaries;
(x) any Contract that relates to any swap, forward, futures, or other similar derivative transaction with a notional value in excess of $2,000,000;
(xi) any material collective bargaining agreement or other material Contract with any labor union;
(xii) any Contract involving the settlement of any action or threatened action (or series of related actions) which will (A) is a material joint operating agreement (JOA) involve payments after the date hereof of consideration in excess of $2,000,000 or (B) defines impose material monitoring or reporting obligations to any material area other Person outside the ordinary course of mutual interest (AMI)business; orand
(xixiii) is a any Contract not otherwise described in any other subsection of this Section 4.20(a) that would be required to be set forth filed on Section 3.21(a)(xi) of SEDAR by the Company Disclosure Schedulesas a “material contract” under NI 51-102.
(b) Each Neither Parent nor any Parent Subsidiary is in breach of or default under the terms of any Parent Material Contract where such breach or default would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect. To the knowledge of Parent, as of the date hereof, no other party to any Parent Material Contract described is in clauses (i) through (x) above is referred breach of or default under the terms of any Parent Material Contract where such breach or default would reasonably be expected to herein have, individually or in the aggregate, a Parent Material Adverse Effect. Except as would not reasonably be expected to have, individually or in the aggregate, a “Parent Material Contract”. Each Adverse Effect, each Parent Material Contract is a valid and legally binding obligation of Parent or the Company and its Subsidiaries as applicable Subsidiary of Parent which is party thereto and, to the knowledge of the CompanyParent, of each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiaryeffect, in each case, except that (i) such enforcement may be subject to Creditorsapplicable bankruptcy, insolvency, examinership, fraudulent transfer, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ Rights, except as would not, individually or in the aggregate, rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be reasonably likely subject to have a Company Material Adverse Effect, equitable defenses and neither the Company nor any of its Subsidiaries, nor, to the knowledge discretion of the Company, court before which any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably proceeding therefor may be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parentbrought.
Appears in 2 contracts
Sources: Merger Agreement (Waste Connections, Inc.), Merger Agreement (Progressive Waste Solutions Ltd.)
Material Contracts. (a) Except for (i) this Agreement, (ii) contracts filed as exhibits to the TRMT SEC Documents filed prior to the date hereof, (iii) contracts related to the TRMT Loans, (iv) contracts entered pursuant to the TRMT Repurchase Agreement to finance the purchase price of assets or refinance TRMT’s repurchase obligations pursuant to the TRMT Repurchase Agreement, in each case in the Ordinary Course of Business, and (v) contracts that (A) will be fully performed and satisfied as of or prior to Closing, or (B) are by and among only TRMT and any wholly owned TRMT Subsidiary or among wholly owned TRMT Subsidiaries, Section 4.16(a) of the TRMT Disclosure Letter sets forth a list of each contract, oral or written, to which TRMT or any TRMT Subsidiary is a party or by which any of them or any of their assets are bound (other than TRMT Permitted Liens) which, as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) that:
(i) would be is required to be filed by with the Company as a “material contract” SEC pursuant to Item 601(b)(2), (as such term is defined in item 601(b)(104), (9) or (10) of Regulation S-K of under the SEC)Securities Act;
(ii) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected is required to be material described pursuant to Item 404 of Regulation S-K under the CompanySecurities Act;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent obligates TRMT or any of its Subsidiaries after the Effective Time) may engage TRMT Subsidiary to make any non-contingent expenditures (other than principal and/or interest payments or the manner or locations in which any deposit of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status other reserves with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiariesdebt obligations);
(iv) (A) is an indenturecontains any material non-compete or material exclusivity provisions with respect to any line of business or geographic area with respect to TRMT or any TRMT Subsidiary, loan or, upon consummation of the Merger and the other Transactions, RMRM or credit Contract, loan note, mortgage Contract or other Contract representingRMRM Subsidiaries, or which materially restricts the conduct of any guarantee of, indebtedness for borrowed money of the Company business conducted by TRMT or any TRMT Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of geographic area in which TRMT or any person other than the Company or a wholly-owned TRMT Subsidiary of the Company in excess of $100 millionmay conduct business;
(v) grants obligates TRMT or any TRMT Subsidiary to indemnify any past or present trustees, directors, officers, employees and agents of TRMT or any TRMT Subsidiary pursuant to which TRMT or any TRMT Subsidiary is the indemnitor, other than any TRMT Governing Documents or any TRMT Subsidiary Governing Documents;
(vi) evidences Indebtedness of TRMT or any TRMT Subsidiary to any Person, or any guaranty thereof, in excess of $2,000,000;
(vii) is a settlement, conciliation, or similar contract that imposes any material monetary or non-monetary obligations upon TRMT or any TRMT Subsidiary after the date of this Agreement;
(viii) (A) rights requires TRMT or any TRMT Subsidiary to dispose of first refusal, rights of first negotiation or similar pre-emptive rightsacquire assets, or (B) putsinvolves any pending or contemplated merger, calls consolidation or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLPbusiness combination transaction;
(ix) relates to the acquisition a joint venture, partnership, strategic alliance or disposition similar arrangement that is material to TRMT or relates to or involves a sharing of any business a material amount of revenues, profits, losses, costs or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company liabilities by TRMT or any of its Subsidiaries has TRMT Subsidiary with any liability in excess of $100 million in any transaction or series of related transactionsPerson;
(x) contains restrictions on the ability of TRMT or any TRMT Subsidiary to pay dividends or other distributions (A) is a material joint operating agreement (JOA) other than pursuant to any TRMT Governing Documents or (B) defines any material area of mutual interest (AMITRMT Subsidiary Governing Documents); or;
(xi) is material to TRMT and is with a Contract required Governmental Authority; or
(xii) constitutes a loan to be set forth on Section 3.21(a)(xiany Person (other than a wholly owned TRMT Subsidiary) of the Company Disclosure Schedulesby TRMT or any TRMT Subsidiary.
(b) Each such Contract described contract in clauses (iany of the categories set forth in Section 4.16(a)(i) through (xxii) above to which TRMT or any TRMT Subsidiary is a party or by which it is bound as of the date hereof, including any contracts filed as exhibits to the TRMT SEC Documents prior to the date hereof, is referred to herein as a “TRMT Material Contract.”. Each
(c) Except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a TRMT Material Adverse Effect: (i) each TRMT Material Contract is legal, valid, binding and enforceable on TRMT and each TRMT Subsidiary that is a valid and legally binding obligation of the Company and its Subsidiaries as applicable party thereto and, to the knowledge Knowledge of the CompanyTRMT, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rightseffect, except as would notmay be limited by applicable bankruptcy, individually insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at Law); (ii) TRMT and each TRMT Subsidiary has performed all obligations required to be performed by it prior to the aggregatedate hereof under each TRMT Material Contract and, to the Knowledge of TRMT, each other party thereto has performed all obligations required to be reasonably likely performed by it under such TRMT Material Contract prior to have a Company Material Adverse Effect, the date hereof; and (iii) neither the Company TRMT nor any of its SubsidiariesTRMT Subsidiary, nor, to the knowledge Knowledge of the CompanyTRMT, any other party to a Material Contract thereto, is in material breach or violation of any provision of, or in default under, any TRMT Material Contract, and no event has occurred that, with notice or without notice, lapse of time or both, would constitute such a breachviolation, breach or default under any TRMT Material Contract. Neither TRMT nor any TRMT Subsidiary has received written notice of any violation or defaultdefault under any TRMT Material Contract, except for breaches, violations or defaults that would notthat, individually or in the aggregate, have not had, and would not reasonably be expected to have have, a Company TRMT Material Adverse Effect. A copy Neither TRMT nor any TRMT Subsidiary has received written notice of each termination under any TRMT Material Contract, and, to the Knowledge of TRMT, no party to any TRMT Material Contract has previously been delivered threatened to Parentcancel any TRMT Material Contract, except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a TRMT Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Tremont Mortgage Trust), Merger Agreement (RMR Mortgage Trust)
Material Contracts. (ai) Except for this AgreementAgreement and except for Contracts filed as exhibits to the Company Reports, as of the date hereofof this Agreement, neither none of the Company nor any of or its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) thatby:
(iA) other than with respect to any partnership that is wholly owned by the Company or any wholly owned Subsidiary of the Company, any partnership, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture material to the Company or any of its Subsidiaries or in which the Company owns more than a 15% voting or economic interest, or any interest valued at more than $10 million without regard to percentage voting or economic interest;
(B) any Contract (other than among direct or indirect wholly owned Subsidiaries of the Company) 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 $1 million;
(C) any Contract that would be required to be filed by the Company as a “material contract” (as such term is defined in item pursuant to Item 601(b)(10) of Regulation S-K of under the SEC)Securities Act, excluding any Benefit Plan;
(iiD) includes any continuing or other contingent payment obligations Contract that (including any “earn-out” or indemnification obligationsI) arising in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected purports to be material to the Company;
(iii) (A) limits limit in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions)business, (BII) would could require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or Subsidiaries, (CIII) grants “most favored nation” status with respect to any material obligations that, after following the Effective TimeMerger, would apply to Parent or any of and its Subsidiaries, including the Company and its Subsidiaries;
Subsidiaries or (ivIV) (A) is an indenture, loan prohibits or credit Contract, loan note, mortgage Contract or other Contract representing, or limits in any guarantee of, indebtedness for borrowed money material respect the right of the Company or any Subsidiary of its Subsidiaries to make, sell or distribute any products or services;
(E) any Contract to which the Company or any of its Subsidiaries is a party containing a standstill or similar agreement pursuant to which the Company has agreed not to acquire the assets or securities of the other party or any of its Affiliates;
(F) any Contract between the Company or any of its Subsidiaries and any Affiliate thereof, including any director or officer of the Company in excess or any Person beneficially owning five percent or more of $100 million or the outstanding Shares, excluding any Benefit Plan;
(BG) is a guarantee any Contract providing for indemnification by the Company or any of its Subsidiaries of any Person, except for any such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset Contract that is (i) not material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
and (viiiii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products entered into in the ordinary course of business consistent with past practicebusiness;
(H) any material Contract relating to the license of Intellectual Property (excluding commercial off-the-shelf or shrink wrap software that has not been modified or customized);
(I) any Contract that contains a put, call or similar right pursuant to which the Company or any of its Subsidiaries has could be required to purchase or sell, as applicable, any liability in excess equity interests of any Person or assets that have a fair market value or purchase price of more than $100 million in any transaction or series of related transactions;1 million; and
(xJ) any Contract (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is other than a Contract required to be set forth on Section 3.21(a)(xi) described in one of the other provisions in this Section 5.1(j)) which is material to the Company Disclosure Schedules.
and its Subsidiaries (b) Each each such Contract described in clauses (iA) through (x) above J), together with all exhibits and schedules to such Contracts and those Contracts which would be Material Contracts but for the exception of being filed as exhibits to the Company Reports, is referred to herein as a “Material Contract”. ).
(ii) Each of the Material Contract Contracts is a valid and legally binding obligation of on the Company and or its Subsidiaries Subsidiaries, as applicable the case may be and, to the knowledge of the Company, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rightseffect, 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, be reasonably likely to have a Company Material Adverse Effect, and neither . There is no default under any such Contracts by the Company nor any of or its Subsidiaries, nor, to the knowledge of the Company, any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, Subsidiaries and no event has occurred that, that with or without notice, the lapse of time or both, the giving of notice or both would constitute such a breachdefault thereunder by the Company or its Subsidiaries, violation or default, in each case except for breaches, violations or defaults that as would not, or would not reasonably be expected to, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parent.
Appears in 2 contracts
Sources: Merger Agreement (RR Donnelley & Sons Co), Merger Agreement (Bowne & Co Inc)
Material Contracts. (a) Except for this AgreementSchedule 4.16 of the Company Disclosure Letter, together with the lists of exhibits contained in the Company SEC Documents, sets forth a true and complete list, as of the date hereofof this Agreement, neither of each Contract (excluding Employee Benefit Plans) described below in this Section 4.16(a) to which the Company nor or any Subsidiary of its Subsidiaries the Company is a party or by which it is bound, in each case as of the date of this Agreement (such Contracts being referred to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (herein as the “ContractCompany Material Contracts”) that:):
(i) would be required to be filed other than Contracts providing for the acquisition, purchase, sale or divestiture of Company Portfolio Securities, whole loans or mortgage servicing rights entered into by the Company as a “material contract” (as such term is defined in item 601(b)(10) of Regulation S-K of the SEC);
(ii) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Company;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess the ordinary course of $100 million business, each Contract that involves a pending merger, business combination, acquisition, purchase, sale or (B) is a guarantee by divestiture that requires the Company or any of its Subsidiaries to dispose of such indebtedness of any person other than the Company or acquire assets or properties with a wholly-owned Subsidiary of the Company fair market value in excess of $100 million10,000,000;
(ii) each Contract relating to indebtedness of the Company outstanding as of the date hereof for borrowed money (or commitments or guarantees in respect thereof) or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $25,000,000, other than agreements solely among the Company and its Subsidiaries;
(iii) each Contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area, excluding any Contracts entered into in the ordinary course of business that restrict the Company or any of its Subsidiaries from soliciting, marketing to, or otherwise contacting borrowers pursuant to agreements for the sale and purchase of Mortgage Loans and mortgage servicing rights and agreements to service or subservice Mortgage Loans;
(iv) each material partnership, joint venture or strategic alliance agreement (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(v) each Contract between or among the Company or any Subsidiary of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries, or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand;
(vi) each Company Servicing Agreement and each Company Subservicing Agreement with a third party customer for the servicing or subservicing of Mortgage Loans with an aggregate unpaid principal balance of $1,000,000,000 (with “customer” to be determined by aggregating all affiliated entities and all securitizations, trusts or other investment vehicles sponsored, advised or managed by such customer or its affiliates);
(vii) any Contract that grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person Person (other than the Company, Company or a wholly-wholly owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLPCompany) with respect to any asset or property that is material to the CompanyCompany or any of its Subsidiaries;
(viviii) any Contract that was entered into to settle any material litigation Proceeding and which imposes material ongoing obligations on the Company or any of its SubsidiariesSubsidiaries after the Closing;
(viiix) limits any confidentiality agreement or restricts standstill agreement entered into with any third party (or any agent thereof), other than in connection with, or in contemplation of, the ability of Transactions, containing any exclusivity or standstill provisions that are or will be binding on the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock(including, partner interestsafter the Closing, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more Parent and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company or any of its Subsidiaries has any liability in excess of $100 million in any transaction or series of related transactionsSubsidiaries);
(x) any Contract with the 10 largest vendors, service providers and other suppliers (Aincluding independent contractors) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedules.
(b) Each such Contract described in clauses (i) through (x) above is referred to herein as a “Material Contract”. Each Material Contract is a valid and legally binding obligation of the Company and its Subsidiaries on a consolidated basis (as applicable measured by amounts paid or payable by the Company and its Subsidiaries on a consolidated basis during the fiscal year ended December 31, 2024), excluding legal, accounting and Tax service providers;
(xi) each Company Related Party Agreement; and
(xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Company.
(b) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and, to the knowledge Knowledge of the Company, each other party thereto, and is in full force and effect effect, subject, as to enforceability, to the Enforceability Exceptions. Except as has not had, and enforceable by the Company or the applicable Subsidiary, in each case, subject would not reasonably be expected to Creditors’ Rights, except as would nothave, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, or would not reasonably be expected, individually or in the aggregate, to prevent, or materially impair, interfere with, hinder or delay the consummation of, or materially adversely affect the ability of the Company to consummate, the Transactions, including the Merger, on a timely basis, and in any event, prior to the End Date: (i) neither the Company nor any of its Subsidiaries, Subsidiaries is in breach or default under any Company Material Contract nor, to the knowledge Knowledge of the Company, is any other party to a any such Company Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and thereunder; (ii) no event has occurred that, with that (without or without notice, notice or lapse of time time, or both, ) would constitute such a breach, violation or defaultbreach of, except for breaches, violations or defaults that would not, individually or in default under any Company Material Contract; and (iii) neither the aggregate, reasonably be expected Company nor any of its Subsidiaries has received written notice of the intention of any counterparty to have a Company Material Adverse Effect. A copy Contract to cancel, terminate, materially change the scope of each rights under or fail to renew any Company Material Contract has previously been delivered to ParentContract.
Appears in 2 contracts
Sources: Merger Agreement (Two Harbors Investment Corp.), Merger Agreement (Two Harbors Investment Corp.)
Material Contracts. (a) Except for this Agreement, Section 4.17(a) of the Company Disclosure Schedule sets forth a list as of the date hereof, neither of this Agreement of each of the following Contracts (other than Company Employee Plans and such Contracts solely among the Company nor and any of its wholly owned Subsidiaries) to which the Company or any of its Subsidiaries is a party to or by which it is bound by any agreement, lease, easement, license, contract, note, mortgage, indenture (each such Contract listed or other legally binding obligation (“Contract”) that:
(i) would be required to be filed by the Company as a “material contract” (as such term is defined in item 601(b)(10) of Regulation S-K so listed, and each of the SEC);
(ii) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by following Contracts to which the Company or any of its Subsidiaries becomes a party or by which it becomes bound after the date of this Agreement, a “Company Material Contract”):
(i) any business Contract to which payment obligations any of the top ten (10) customers or top ten (10) vendors of the Company (determined on the basis of the consolidated revenue or consolidated expenses, as applicable, of the Company and its Subsidiaries, taken as a whole, for the fiscal year ended December 31, 2024) is a party (excluding any immaterial non-disclosure agreements that are or would reasonably be expected ancillary to be material Contracts pursuant to which payments are made to the CompanyCompany or its Subsidiaries);
(iiiii) any Contract that (A) limits or purports to limit, in any material respect either respect, the type freedom of business in which the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the freedom of Parent, the Company or any of their respective Affiliates after the Effective Time, (B) contains any material exclusivity or material “most favored nation” obligations, material rights of first refusal, material rights of first offer, material put or call rights or other restrictions or similar provisions that are binding on the Company or any of its Subsidiaries (or in which or, after the Effective Time, that would be binding on Parent or any of its Subsidiaries after the Effective TimeAffiliates) may engage or the manner (C) otherwise limits or locations in which any of them may so engage restricts, in any business (including through “non-competition” or “exclusivity” provisions)material respect, (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 its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its SubsidiariesAffiliates) from hiring or soliciting any Person for employment;
(iviii) (A) is an indenture, loan or credit Contract, loan note, mortgage any standard form Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by pursuant to which the Company or any of its Subsidiaries of such indebtedness of any person other than provides the Company Product or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or other Product to any client and (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company Contract (or any group of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stockContracts that, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practiceaggregate, are material) pursuant to which the Company or any of its Subsidiaries has provides the Company Product or other Product to any liability in excess of $100 million in client that is not on any transaction such standard form or series of related transactionsincludes any material deviations from any such standard form;
(xiv) (A) is a material joint operating agreement (JOA) any Contract reasonably expected to result in payments made or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedules.
(b) Each such Contract described in clauses (i) through (x) above is referred to herein as a “Material Contract”. Each Material Contract is a valid and legally binding obligation of received by the Company and its Subsidiaries in excess of $1,500,000 in any year that provides for any referral arrangement, commission sharing arrangement or co-marketing arrangement, including any finder’s agreement;
(v) any material Contract for which the execution, delivery and performance by the Company of this Agreement or the consummation of any of the Transactions would (A) require any consent or other action (including notice by the Company) thereunder, (B) constitute a default, or an event that, with or without notice or lapse of time or both, would constitute a default, thereunder, (C) cause or permit the termination, cancellation, acceleration or other change of any material right or obligation (including triggering of a price adjustment, right of renegotiation or other remedy) or the loss of any material benefit to which the Company or any of its Subsidiaries is entitled thereunder or (D) require any material payment by the Company or any of its Subsidiaries thereunder;
(vi) promissory notes, loan agreements, indentures, evidences of indebtedness or other instruments providing for or relating to the lending of money, (A) if as applicable andborrower or guarantor, in excess of $1,500,000, and (B) if as lender, in excess of $1,500,000;
(vii) any material joint venture, profit-sharing, partnership, stockholders, investors rights, registration rights or similar Contract;
(viii) any Contracts or series of related Contracts entered into within the last three (3) years relating to the acquisition or disposition of the business, assets or securities of any Person or any business for a price in excess of $1,500,000 (in each case, whether by merger, sale of stock, sale of assets or otherwise);
(ix) any Contracts or other transactions with any (A) executive officer or director of the Company, (B) record or, to the knowledge of the Company, each other party thereto, and is in full force and effect and enforceable by beneficial owner of five percent (5%) or more of the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, nor, to the knowledge voting securities of the Company, or (C) affiliates or “associates” (or members of any of their “immediate family”) (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Securities Exchange Act) of any such executive officer, director or beneficial owner (each of the foregoing, a “Related Party” and each such Contract, a “Related Party Contract”); and
(x) any other party Contract required to a Material Contract is in breach or violation be filed by the Company pursuant to Item 601(b)(10) of any provision of, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parent.Regulation S-K.
Appears in 2 contracts
Sources: Merger Agreement (Strive, Inc.), Merger Agreement (Semler Scientific, Inc.)
Material Contracts. (a) Except for this Agreementas otherwise set forth on Confidential Schedule 3.13, as none of the date hereof, neither the Company nor GBNK or any of its Subsidiaries is a party to to, or bound by or subject to any agreement, lease, easement, license, contract, notearrangement, mortgagecommitment or understanding (whether written or oral) which is in effect as of the date hereof (any such contract, indenture arrangement, commitment or other legally binding obligation (understanding in the following categories, a “Material Contract”):
(A) that:
(i) would be required to be filed by the Company as that is a “material contract” (as such term is defined in item within the meaning of Item 601(b)(10) of the SEC’s Regulation S-K of the SEC);
K; (ii) includes any continuing containing covenants binding upon GBNK or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with its Subsidiaries that restrict the acquisition or disposition by the Company ability of GBNK or any of its Subsidiaries (or which, following the consummation of the Merger, would materially restrict the ability of the Resulting Corporation or its Subsidiaries) to compete in any business or geographic area or which payment obligations are or grant “most favored nation” status that, following the Merger, would reasonably be expected to be material apply to the Company;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent Resulting Corporation or any of its Subsidiaries after the Effective TimeSubsidiaries; (iii) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would that could require the disposition of any material assets or line of business of the Company GBNK or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent Resulting Corporation or any of its Subsidiaries, including the Company and its Subsidiaries;
; or (iv) (A) is an indenture, loan that prohibits or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money limits the right of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company GBNK or any of its Subsidiaries to declare sell or pay dividends distribute any products or make distributions services in respect of their capital stock, partner interests, membership interests or other equity interestsany material respect;
(viiiB) (i) involving commitments to others to make capital expenditures or capital asset purchases or capital asset sales in excess of $250,000 per contract or (ii) involving expenditures or commitments to purchase relating to information technology of an amount or value in excess of $250,000 over its remaining term;
(C) relating to any direct or indirect indebtedness for borrowed money of GBNK or any of its Subsidiaries (including loan agreements, lease purchase arrangements, guarantees, agreements to purchase goods or services or to supply funds or other undertakings on which others rely in extending credit, but excluding deposits received in the ordinary course of business), or any conditional sales contracts, chattel mortgages and other security arrangements with respect to personal property and any equipment lease agreements involving payments to or by GBNK or any of its Subsidiaries in excess of $250,000 over the remaining term;
(D) other than pursuant to Employee Plans, providing for payments to be made by GBNK or any of its Subsidiaries upon a change in control thereof;
(E) that may not be cancelled by IBG, GBNK or any of their respective Subsidiaries without payment of a penalty or termination fee equal to or greater than $100,000 (assuming such contract was terminated on the Closing Date);
(F) containing any standstill or similar agreement pursuant to which GBNK has agreed not to acquire assets or securities of another person;
(G) that is entered into, or has been entered into in the two years prior to the date hereof, with (A) any Affiliate of GBNK, (B) any current or former director or executive officer or any Person beneficially owning five percent (5%) or more of the outstanding GBNK Shares or (C) any “associate” or member of the “immediate family” (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) of a material Person identified in clauses (A) or (B) of this subsection;
(H) that contains a put, call or similar right pursuant to which GBNK or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any Person or assets;
(I) which relates to a joint venture, partnership, limited liability company, joint venture company agreement or other similar agreement or arrangement relating arrangement, or to the formation, creation, creation or operation, management or control of any partnership, limited liability company partnership or joint venture in which the Company ownswith any third parties;
(J) that involves performance of services or delivery of goods or materials to, directly or indirectlyexpenditures by, GBNK or any voting of its Subsidiaries of an amount or economic interest of 15% or more and has invested or is contractually required to invest value in excess of $100 million250,000 over its remaining term, other than with respect to any whollyloans, funding arrangements, OREO-owned Subsidiary related arrangements and other transactions made in the ordinary course of the Company banking or wholly-owned Subsidiary of the MLPtrust business;
(ixK) relates relating to the acquisition or disposition of any business or operations (whether by merger, sale of stock, sale of assets or otherwise) in respect of which there are any remaining material obligations (other than contracts relating to the purchase and acquisition or sale of crude oil and products other real estate owned);
(L) granting to a Person any right, license, covenant not to ▇▇▇ or other right in the Proprietary Rights or grants to GBNK or any of its Subsidiaries a license or other right to any Proprietary Rights (including licenses to software, other than licenses to shrink-wrap or click-wrap software), in each case that involves the payment of more than $50,000 per annum or is material to the conduct of the business of GBNK or any of its Subsidiaries;
(M) relating to the lease of real property or for the lease of personal property providing for annual payments of $100,000 or more; or
(N) is otherwise not entered into in the ordinary course of business consistent with past practice) pursuant or that is material to which the Company GBNK or its financial condition or results of operations. Each Material Contract is valid and binding on GBNK or one of its Subsidiaries, as applicable, and in full force and effect, and none of GBNK or any of its Subsidiaries has any liability in excess of $100 million in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedules.
(b) Each such Contract described in clauses (i) through (x) above is referred to herein as a “Material Contract”. Each Material Contract is a valid and legally binding obligation of the Company and its Subsidiaries as applicable and, to the knowledge Best Knowledge of the CompanyGBNK, each other party any counterparty thereto, and is in full force default under any Material Contract, and effect and enforceable by there has not occurred any event that, with the Company lapse of time or the applicable Subsidiarygiving of notice or both, in each case, subject to Creditors’ Rightswould constitute a default by GBNK or any of its Subsidiaries, except as would not, individually or in the aggregate, reasonably be reasonably likely to have result in a Company Material Adverse EffectChange in GBNK. True, correct and neither complete copies of all Material Contracts have been furnished or made available to IBG prior to the Company date hereof. Neither GBNK nor any of its Subsidiaries, nor, to the knowledge Best Knowledge of the CompanyGBNK, has received notice of, any other party to a Material Contract is in breach or violation of any provision ofMaterial Contract by any of the other parties thereto which would reasonably be expected to result in, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, either individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to ParentChange in GBNK.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Independent Bank Group, Inc.), Agreement and Plan of Reorganization (Guaranty Bancorp)
Material Contracts. Schedule 3.10 sets forth a true, correct and complete list of all existing contracts (a) Except involving an annual commitment or annual payment to or from the Transferred Subsidiaries of more than Fifty Thousand United States Dollars (US$50,000), (b) with respect to the Transferred Subsidiaries relating to any indebtedness for this Agreementborrowed money or the deferred purchase price of property, as (c) which limit or restrict in any respect any of the date hereofTransferred Subsidiaries from engaging in any line of business in any jurisdiction, neither (d) relating to the Company nor acquisition or disposition of the Transferred Subsidiaries (whether by merger, sale of stock, sale of assets or otherwise) or (e) not made in the ordinary course of business and that are significant to the Transferred Subsidiaries, including all amendments thereto, to which Seller or any of its Subsidiaries is a party to or by which it is bound by any agreement(the “Material Contracts”). Each Material Contract is legal, leasevalid, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) that:
(i) would be required to be filed by the Company as a “material contract” (as such term is defined and enforceable in item 601(b)(10) of Regulation S-K of the SEC);
(ii) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection accordance with the acquisition or disposition by the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Company;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status respective terms with respect to any material obligations that, after the Effective Time, would apply to Parent Seller or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indentureand, loan or credit to Seller’s Knowledge, each other party to such Material Contract, loan noteexcept as the same may be limited by bankruptcy, mortgage Contract insolvency, reorganization, moratorium or other Contract representingLaws affecting the rights of creditors generally and subject to the Laws governing (and all limitations on) specific performance, injunctive relief and other equitable remedies. There are no existing defaults or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee breaches by the Company Seller or any of its Subsidiaries of such indebtedness of under any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company Material Contract or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company other contract to which Seller or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in party and which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition Transferred Subsidiaries (or disposition of any business events or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company or any of its Subsidiaries has any liability in excess of $100 million in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedules.
(b) Each such Contract described in clauses (i) through (x) above is referred to herein as a “Material Contract”. Each Material Contract is a valid and legally binding obligation of the Company and its Subsidiaries as applicable and, to the knowledge of the Company, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred thatconditions which, with notice or without notice, lapse of time or both, would constitute a default or breach) and, to Seller’s Knowledge, there are no such defaults (or events or conditions which, with notice or lapse of time or both, would constitute a default or breach, violation ) with respect to any third party to any Material Contract or defaultany such other contract, except for breaches, violations in each case defaults or defaults breaches that would not, individually or in the aggregate, not reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to ParentEffect on the Transferred Subsidiaries.
Appears in 2 contracts
Sources: Acquisition Agreement (Wireless Facilities Inc), Acquisition Agreement (LCC International Inc)
Material Contracts. (a) Except for as disclosed in the Specified Parent SEC Documents, to the extent that it is reasonably apparent that the disclosure in the Specified Parent SEC Documents is responsive to the matters set forth in this AgreementSection 4.12(a), as of the date hereofof this Agreement, neither the Company Parent nor any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, notearrangement, mortgagecommitment or understanding (whether written or oral), indenture other than hedging or other legally binding obligation (“Contract”) that:
similar arrangements in the ordinary course of business consistent with past practice, (i) would be required to be filed by the Company as which is a “material contract” contract (as such term is defined in item Item 601(b)(10) of Regulation S-K of the SEC);
) to be performed after the date of this Agreement, (ii) includes any continuing which materially restrains, limits or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by the Company impedes Parent’s or any of its Subsidiaries of Subsidiaries’ ability to compete with or conduct any business which payment obligations are or would reasonably be expected to be material to the Company;
any line of business (iii) including (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent geographic limitations on Parent’s or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions)Subsidiaries’ activities, (B) would require the disposition any confidentiality agreement, area of mutual interest or standstill agreement with any material assets third party (or line agent thereof) that contains any exclusivity or standstill provisions that are or will be binding on Parent, any of business of the Company or its Subsidiaries or, after the Effective Time, the Surviving Company); provided that Parent need not disclose in the Parent Disclosure Letter information related to those agreements which would otherwise be covered by this clause (ii) to the extent such agreements prohibit the Company from disclosing the existence or any terms of such agreements to third parties, except that if any such agreements contain any material restrictions, limits or impediments on Parent’s or its Subsidiaries Subsidiaries’ ability to compete with or conduct any business or any line of business, such restrictions, limits and impediments shall be disclosed without providing the identity of the parties to the agreements on the Parent Disclosure Letter, (Ciii) grants “most favored nation” status with respect which is a material take-or-pay agreement or other similar agreement that entitles purchasers of production to any material obligations thatreceive delivery of Hydrocarbons without paying therefor, after the Effective Time(iv) which contains a put, would apply call or other right of acquisition or disposition pursuant to which Parent or any of its SubsidiariesSubsidiaries could be required to purchase or sell, as applicable, any equity interests (including the Company and its Subsidiaries;
(ivlicensing or leasehold interests) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other Person or assets that have a market value or purchase price of more than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal15,000,000, rights of first negotiation or similar pre-emptive rightsor, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset calls on production, that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company obligate Parent or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stocksell Hydrocarbons at a price which is less than market value, partner interests, membership interests or other equity interests;
(viiiv) which is a material partnership, limited liability company, partnership or joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company partnership or joint venture in material to Parent and its Subsidiaries, taken as a whole, or (vi) which the Company ownsis otherwise material to Parent and its Subsidiaries taken as a whole. Each contract, directly arrangement, commitment or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary understanding of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company or any of its Subsidiaries has any liability in excess of $100 million in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedules.
(b) Each such Contract type described in clauses (ithis Section 4.12(a)(i) through (x) above iv), whether or not disclosed in the Specified Parent SEC Documents, is referred to herein as a “Parent Material 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 or disclosed in the Specified Parent SEC Documents, is a Parent Material Contract). Parent has previously made available to the Company true, complete and correct copies of each Parent Material Contract other than those which Parent is entitled to omit from the Parent Disclosure Letter pursuant to the proviso to clause (ii) of the first sentence of this Section 4.12(a).
(b) (i) Each Parent Material Contract is a valid and legally binding obligation of the Company and its Subsidiaries as applicable and, to the knowledge of the Company, each other party thereto, and is in full force and effect effect, (ii) Parent and enforceable each of its Subsidiaries has performed in all respects all obligations required to be performed by it to date under each Parent Material Contract, (iii) no event or condition exists which constitutes or, after notice or lapse of time or both, would constitute, a default on the Company part of Parent or any of its Subsidiaries under any such Parent Material Contract and (iv) to the applicable SubsidiaryKnowledge of Parent, no other party to such Parent Material Contract is in default in any respect thereunder, except in each casecase for any invalidity, subject to Creditors’ Rightsnonperformance, except as would notevent, condition or default that, individually or in the aggregate, has not had and would not be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Effect on Parent.
Appears in 2 contracts
Sources: Merger Agreement (Halcon Resources Corp), Merger Agreement (Georesources Inc)
Material Contracts. (a) Except for this AgreementSection 3.19(a) of the Company Disclosure Letter sets forth a true and complete list of each of the following types of Contracts to which the Company or any of its Subsidiaries has any current or future rights, responsibilities, obligations or liabilities (in each case, whether contingent or otherwise) or to which any of their respective properties or assets is subject, in each case as of the date hereofof this Agreement, neither but excluding any purchase orders, invoices, requisition forms, or other form purchasing documents:
(i) (A) contains any exclusivity or similar provision that is binding on the Company nor or any of its Subsidiaries (or would purport to be binding, after the Effective Time, on Parent or any of its Subsidiaries) or (B) otherwise limits or restricts the Company or any of its Subsidiaries (or would purport to limit or restrict, after the Effective Time, Parent or any of its Subsidiaries) from (1) engaging or competing in any line of business in any location or with any Person, (2) selling any products or services of or to any other Person or in any geographic region or (3) obtaining products or services from any Person, in each case of clause (A) and clauses (1), (2) and (3) of clause (B), that is material to the Company and its Subsidiaries, taken as a whole;
(ii) includes (A) any “most favored nation” terms and conditions (including with respect to pricing) granted by the Company to a Third Party, or (B) any arrangement whereby the Company grants any right of first refusal or right of first offer or similar right to a Third Party, in each case of clauses (A) and (B) that is material to the Company and its Subsidiaries, taken as a whole;
(iii) is a party joint venture, strategic alliance or partnership agreement that either (A) is material to the Company and its Subsidiaries, taken as a whole, or bound by any (B) would reasonably be expected to require the Company and its Subsidiaries to make expenditures in excess of $1,000,000 in the aggregate during the 12-month period following the date of this Agreement;
(iv) is a loan, guarantee of indebtedness or credit agreement, leasenote, easement, license, contract, notebond, mortgage, indenture or other legally binding obligation commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $1,000,000 individually;
(v) is a Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $1,000,000;
(vi) is a material Contract with respect to any Company Intellectual Property and not for “Contract”off-the-shelf” software or hardware generally commercially available on standard and non-discriminatory terms;
(vii) that:is an acquisition agreement, asset purchase or sale agreement, stock purchase or sale or purchase agreement or other similar agreement, in each case for the purchase or sale of a corporation, partnership, or other business organization or business thereof (including all or substantially all of the assets of such business), pursuant to which (A) the Company reasonably expects that it is required to pay total consideration including assumption of debt after the date of this Agreement to be in excess of $1,000,000, (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $1,000,000 or (C) any other Person has the right to acquire any equity interests in the Company or any of its Subsidiaries;
(viii) is a settlement or similar agreement with any Governmental Authority or arbitrator (public or private) (including any corporate integrity agreement, monitoring agreement or deferred prosecution agreement) or order or consent of a Governmental Authority or arbitrator (public or private) (including any consent decree or settlement order) to which the Company or any of its Subsidiaries is subject involving performance on or after the date hereof by the Company or any of its Subsidiaries;
(ix) any Contract (or series of related Contracts) pursuant to which the Company or any Subsidiary has continuing “earn-out” or similar obligations that could result in payments from the Company or any Subsidiary in excess of $1,000,000 in the aggregate;
(x) any Contract (or series of related Contracts) that obligates the Company or any of its Subsidiaries to make any capital commitment, loan or capital expenditure in an amount in excess of $1,000,000 per twelve-month period after the date of this Agreement;
(xi) any Contract with the Top Channel Partners and Contract Manufacturers;
(xii) any Contract that contains a change in control provision that would be triggered in connection with consummation of the Transactions, provided that (i) such Contract has provided $15,000,000 or more of revenue to the Company or any of its Subsidiaries, individually or in the aggregate, in the twelve-month period prior to the date of this Agreement, or would reasonably be expected to provide $15,000,000 or more of revenue to the Company or any of its Subsidiaries, individually or in the aggregate, in the twelve-month period after the date of this Agreement, or (ii) such change in control provision expressly requires aggregate payments by the Company or any its Subsidiaries, individually or in the aggregate, in excess of $500,000;
(xiii) any Contract between the Company or any of its Significant Subsidiaries, on the one hand, and any officer, director or Affiliate (other than a wholly owned Subsidiary) of the Company or any of its Significant Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract pursuant to which the Company or any of its Significant Subsidiaries has an obligation to indemnify such officer, director, Affiliate or family member, but not including any Company Plans;
(xiv) any stockholders, investors rights, registration rights or similar agreement or arrangement;
(xv) any Contract pursuant to which the Company or any of its Subsidiaries has continuing obligations or interests involving (A) “milestone” or other similar contingent payments to be made to or by the Company or any of its Subsidiaries upon the achievement of certain milestones, including upon the achievement of regulatory or commercial milestones, or (B) payment of royalties or other amounts calculated based upon any revenues or income of the Company or any of its Subsidiaries, in each case (x) which payments after the date hereof would reasonably be expected to be more than $1,000,000 in the twelve (12) month period following the date hereof and (y) that cannot be terminated by the Company or such Subsidiary without more than sixty (60) days’ notice without material payment or penalty;
(xvi) any material collective bargaining agreement or other material Contract with any labor union;
(xvii) any Contract (including any option agreement) to purchase or sell any interest in real property, and any Real Property Lease;
(xviii) any Contract relating to the indemnification of a Company Indemnified Party that deviates from the form of indemnification agreement made available to Parent; or
(xix) any Contract that would be required to be filed by the Company as a “material contract” (as such term is defined in item pursuant to Item 601(b)(10) of Regulation S-K of under the SEC);
(ii) includes any continuing Securities Act or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition disclosed by the Company or any under Item 1.01 on a Current Report on Form 8-K. Each Contract of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Company;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company or any of its Subsidiaries has any liability in excess of $100 million in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedules.
(b) Each such Contract described in clauses (i) through (xxix) above is referred to herein as a “Company Material Contract.”. Each Material Contract is a valid and legally binding obligation of the Company and its Subsidiaries as applicable and, to the knowledge of the Company, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parent.
Appears in 2 contracts
Sources: Merger Agreement (Polycom Inc), Merger Agreement (Mitel Networks Corp)
Material Contracts. (a) Except for this Agreement, as Section 3.16 of the date hereofSeller Disclosure Schedule sets forth a true and complete list of all Contracts that are Assets or under which there is an Assumed Liability, neither the Company nor in each case under which any party thereto has continuing Liabilities or rights, with respect to any of its Subsidiaries is the following (each, a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Material Contract”) that:):
(i) would be required (A) any Contract containing any covenant (1) prohibiting or limiting the right of Parent or any of its Affiliates to be filed by the Company engage in any line of business or to compete with any Person in any line of business or in any market or geographic location, or (2) prohibiting Parent or any of its Affiliates from engaging in business with any Person or levying a fine, charge or other payment for doing so, or (B) any Contract otherwise qualifying as a Material Contract granting to any Person a right of first refusal, right of first offer, “material contractmost favored nation” (as such term is defined in item 601(b)(10) of Regulation S-K of the SEC)or similar arrangement;
(ii) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with Contracts for the acquisition or disposition by the Company Parent or any of its Subsidiaries Affiliates of any ownership interest in any other Person or other business which payment obligations are or would reasonably be expected to be material to the Company;
(iii) enterprise (A) limits in any material respect either the type since November 1, 2014 for consideration with an aggregate value of business in which the Company $1,000,000 or its Subsidiaries more or (or in B) pursuant to which Parent or any of its Subsidiaries after the Effective Time) may engage Affiliates is subject to any continuing deferred purchase price, “earn out”, purchase price adjustment or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiariescompetition payment obligations;
(iviii) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material all Contracts related to the Company;
incurrence of Indebtedness (vi) was entered into to settle whether incurred, assumed, guaranteed or secured by any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 millionasset), other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase accounts receivables and sale of crude oil and products payables in the ordinary course of business consistent with past practice;
(iv) pursuant any Contract that grants to which any third party an Encumbrance, other than a Permitted Encumbrance, on all or any part of any material Assets;
(v) all Contracts with Material Customers or Material Suppliers;
(vi) any material Contract relating to any (A) material Business Intellectual Property or IT Assets that are Purchased Assets or (B) material Intellectual Property or IT Assets used primarily in the Company Business and licensed to Parent or its Affiliates from a third party, other than in the case of clauses (A) or (B) off-the-shelf software with annual fees of less than $500,000;
(vii) all Contracts other than purchase orders made in the ordinary course of business involving the expenditure, payment or receipt by Parent or any of its Subsidiaries has Affiliates attributable to the Business during 2016 or expected in 2017 (calculated using the average expenditure, payment or receipt per month during the 2017 year to date multiplied by twelve (12)) of more than $2,000,000 in the aggregate;
(viii) Contracts relating to any liability in excess joint venture, partnership or similar arrangement of Parent or any of its Affiliates, including any agreement to share profits or losses;
(ix) any Contract involving a resolution or settlement of any actual or threatened Action with either a value greater than $100 million in any transaction 1,000,000 or series of related transactionsother material ongoing requirements;
(x) any obligation, such as a put or similar right, pursuant to which Parent or any of its Affiliates could be required to purchase, redeem, or otherwise acquire an equity securities of another Person;
(Axi) is any obligation to make any investment in (in the form of a material joint operating agreement loan, capital contribution or otherwise, other than with respect to trade accounts receivable in the ordinary course of business consistent with past practice), or provide any guarantee with respect to the obligations of, any third party;
(JOAxii) any Contract for the provision of services involving third party contractor personnel previously employed by Parent, its Affiliate or (B) defines any material area its or their predecessor pursuant to which Parent or its Affiliates has agreed to indemnify the counterparty for costs related to the termination of mutual interest (AMI)such personnel; or
(xixiii) is a any Contract required to be set forth disclosed on Section 3.21(a)(xi) 3.24 of the Company Seller Disclosure SchedulesSchedule.
(b) Each such Contract described in clauses True and complete copies of all Material Contracts (iother than immaterial amendments, supplements, exhibits or schedules thereto) through (x) above is referred have been made available to herein as a “Buyer prior to the Agreement Date. All of the Material Contract”. Each Material Contract is a Contracts are valid and legally binding obligation of the Company on each party thereto and its Subsidiaries as applicable and, to the knowledge of the Company, each other party thereto, and is are in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rightsaccordance with their terms, except as would not, individually to the extent they have previously expired or terminated in accordance with their terms and except with respect to Contracts listed on Section 3.16(a)(xii) of the aggregate, be reasonably likely Seller Disclosure Schedule that are terminated prior to have a Company Material Adverse Effect, and neither the Company nor Closing pursuant to Section 5.06. None of Parent or any of its SubsidiariesAffiliates is (with or without notice or lapse of time, noror both) in material violation of or material default under any Material Contract, and, to the knowledge Knowledge of the CompanyParent and Sellers, there is no existing or claimed material violation or material default by any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract. None of Parent or any of its Affiliates has received any written notice of any actual or threatened termination, and no event has occurred that, with cancellation or without notice, lapse limitation of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company any Material Adverse Effect. A copy of each Material Contract has previously been delivered to ParentContract.
Appears in 2 contracts
Sources: Purchase Agreement (Owens & Minor Inc/Va/), Purchase Agreement (Halyard Health, Inc.)
Material Contracts. (a) Except for this Agreement, the Company Benefit Plans and any agreements filed as exhibits to the Company SEC Documents, as of the date hereofof this Agreement, neither the Company nor any of its Subsidiaries (or, to the knowledge of the Company, any of the Significant JV Entities) is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) thatby:
(i) would be required to be filed by the Company as a any “material contract” (as such term is defined in item Item 601(b)(10) of Regulation S-K of the SEC);
(ii) includes any continuing Contract that (A) imposes or other contingent payment obligations (including purports to impose, any “earn-out” material restriction or indemnification obligations) arising in connection with prohibition on the acquisition right, ability, manner or disposition by locations of the Company or Company, any of its Subsidiaries or any Significant JV Entity to compete with any other person or acquire or dispose of the securities of any other person or (B) contains an exclusivity or “most favored nation” clause that restricts the business which payment obligations are or would reasonably be expected to be material to of the Company, its Subsidiaries or any Significant JV Entity in a material manner;
(iii) (A) limits in any material respect either the type of business in which the Company mortgage, note, debenture, indenture, security agreement, guaranty, pledge or its Subsidiaries (other agreement or in which Parent instrument evidencing indebtedness for borrowed money or any guarantee of its Subsidiaries after the Effective Time) may engage such indebtedness or the manner other financing or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business capital lease of the Company or its Subsidiaries orCompany, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any Significant JV Entity in an amount in excess of its Subsidiaries, including the Company and its Subsidiaries$25 million;
(iv) (A) is an indentureany joint venture, loan partnership or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture company agreement or other similar agreement or arrangement Contract relating to the formation, creation, operation, management or control of any partnershipjoint venture, partnership or limited liability company or joint venture in which company, other than any such Contract solely between the Company owns, directly and its Subsidiaries or indirectlyamong the Company’s Subsidiaries;
(v) any Contract obligating the Company and/or its Subsidiaries to incur annual capital expenditures in excess of $50 million;
(vi) any Contract expressly limiting or restricting the ability of the Company, any voting of its Subsidiaries or economic interest any Significant JV Entity to make distributions or declare or pay dividends in respect of 15% their capital stock, partnership interests, membership interests or more and has invested other equity interests, as the case may be;
(vii) any acquisition Contract that contains “earn out” or is contractually required other contingent payment obligations, or remaining indemnity or similar obligations, that could reasonably be expected to invest result in payments after the date hereof by the Company, any of its Subsidiaries or any Significant JV Entity in excess of $100 million, other than with respect to ;
(viii) any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLPLabor Agreement;
(ix) relates to any Contract that is a settlement, conciliation or similar agreement with any Governmental Entity in excess of $10 million;
(x) each Contract that provides for the acquisition acquisition, disposition, license, use, distribution or disposition outsourcing of any business assets, services, businesses, equity interests, rights requiring annual payments by the Company, its Subsidiaries or assets (the Significant JV Entities in excess of $50 million, in each case other than Company Midstream Contracts;
(xi) each Contract that provides for the purchase and or sale by Company or any of crude oil and products its Subsidiaries of hydrocarbons, produced water or freshwater or Contracts for gathering, processing, transportation, treating, storage, blending, disposal or similar midstream services (including hydrocarbon or water gathering, processing, treating, handling, disposal, recycling, redelivery, balancing, purchase, sale, fractionation, transportation, interconnection or similar agreements) for which the material firm service or capacity terms provide for, in each case, annual payments after the ordinary course of business consistent with past practice) pursuant to which date hereof by the Company or any of its Subsidiaries has any liability in excess of $100 50 million, or annual revenues after the date hereof to the Company or any of its Subsidiaries in excess of $20 million in any transaction or series of related transactions;(collectively, the “Company Midstream Contracts”); and
(xxii) (A) is a material joint operating agreement (JOA) or (B) defines any material area lease or sublease with respect to a Company Leased Real Property, other than capacity leases and storage leases, in each case, entered into in the ordinary course of mutual interest (AMI); or
(xi) business and that during the twelve months ended December 31, 2023 individually required, or is a Contract required reasonably expected in the future to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedules.
(b) Each such Contract described in clauses (i) through (x) above is referred to herein as a “Material Contract”. Each Material Contract is a valid and legally binding obligation of require, annual revenues or payments by the Company and its Subsidiaries as applicable and, to the knowledge in excess of the Company, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parent$25 million.
Appears in 2 contracts
Sources: Merger Agreement (EQT Corp), Merger Agreement (Equitrans Midstream Corp)
Material Contracts. (ai) Except for this AgreementThere have been made available to Parent true, correct and complete copies of all of the following executory contracts to which Company or its Significant Subsidiary is a party or by which either is bound as of the date hereofof this Agreement (collectively, neither the "Material Contracts"): (A) contracts with any current or former officer or director of Company nor or its Significant Subsidiary; (B) contracts (x) for the sale of any of the material assets or any material amount of assets of Company or its Significant Subsidiary, other than contracts entered into in the ordinary course of business, or (y) for the grant to any person of any preferential rights to purchase any of its Subsidiaries is material assets or any material amount of its assets; (C) contracts that restrict Company or its Significant Subsidiary from competing in any line of business or with any person in any geographical area in any material manner; (D) indentures, credit agreements, security agreements, mortgages, guarantees and promissory notes, and other contracts relating to the borrowing of money involving amounts in excess of $1,000,000; (E) contracts involving (x) the acquisition, merger or purchase of all or substantially all of the assets or business of any person, or (y) the purchase or sale of assets, or a party to series of purchases and sales of assets, involving aggregate consideration of $1,000,000 or bound by more, in each case, other than contracts entered into in the ordinary course of business; (F) contracts with any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) that:
(i) affiliate that would be required to be filed by the Company as a “material contract” (as such term is defined in item 601(b)(10) disclosed under Item 404 of Regulation S-K of under the SEC);Securities Act; (G) contracts that are material to Company and contain a "change in control" or similar provision; and (H) contracts relating to any material joint venture, partnership, strategic alliance or similar arrangement.
(ii) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Company;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business As of the Company or its Subsidiaries ordate of this Agreement, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money all of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company or any of its Subsidiaries has any liability in excess of $100 million in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedules.
(b) Each such Contract described in clauses (i) through (x) above is referred to herein as a “Material Contract”. Each Material Contract is a valid and legally binding obligation of the Company and its Subsidiaries as applicable and, to the knowledge of the Company, each other party thereto, and is Contracts are in full force and effect and enforceable by are the legal, valid and binding obligations of Company or the applicable its Significant Subsidiary, enforceable against it or the Significant Subsidiary in each caseaccordance with their respective terms, subject to Creditors’ Rightsapplicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally and to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). Neither Company nor its Significant Subsidiary is in breach or default in any material respect under any Material Contract nor, to Company's knowledge, is any other party to any Material Contract in breach or default thereunder in any material respect, except as for such breaches or defaults that do not have, and would notnot reasonably be expected to have, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parent.
Appears in 2 contracts
Sources: Merger Agreement (Associated Materials Inc), Merger Agreement (AMH Holdings, Inc.)
Material Contracts. (a) Except for as set forth on Schedule 4.13(a), other than this AgreementAgreement and the Ancillary Documents, as of the date hereof, neither the Company nor there are no Contracts to which CAC is a party or by which any of its Subsidiaries is a party to properties or bound by any agreementassets may be bound, leasesubject or affected, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) that:
which (i) would be required to be filed by the Company as creates or imposes a “material contract” (as such term is defined in item 601(b)(10) of Regulation S-K of the SEC);
Liability greater than $100,000, (ii) includes any continuing involves the engagement of a financial or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising similar professional advisor in connection with respect of the acquisition or disposition by the Company Transactions, another business combination or any of its Subsidiaries of capital raising, in any business which payment obligations are or case that would reasonably be expected to be material applicable to the Company;
Transactions or would impose post-Closing obligations on Pubco or its Subsidiaries, other than customary confidentiality and indemnification provisions, (iii) may not be cancelled by CAC on less than sixty (A60) limits days’ prior notice without payment of a material penalty or termination fee or (iv) prohibits, prevents, restricts or impairs in any material respect either the type any business practice of business in which the Company or its Subsidiaries (or in which Parent CAC or any of its Subsidiaries after the Effective Time) may engage current or the manner or locations in which future Affiliates, any acquisition of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent property by CAC or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan current or credit Contract, loan note, mortgage Contract or other Contract representingfuture Affiliates, or restricts in any guarantee of, indebtedness for borrowed money material respect the ability of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company CAC or any of its Subsidiaries of such indebtedness of current or future Affiliates from engaging in business as currently conducted by it or from competing with any person other Person (each, a “CAC Material Contract”). All CAC Material Contracts have been made available to the Company other than those that are exhibits to the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;Signing SEC Reports.
(vb) grants With respect to each CAC Material Contract: (Ai) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person the CAC Material Contract (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vithose set forth on Schedule 4.14) was entered into to settle any material litigation at arms’ length and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practicebusiness; (ii) pursuant to which the Company or any of its Subsidiaries has any liability in excess of $100 million in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedules.
(b) Each such Contract described in clauses (i) through (x) above is referred to herein as a “Material Contract”. Each CAC Material Contract is a valid legal, valid, binding and legally binding obligation of the Company and its Subsidiaries as applicable enforceable in all material respects against CAC and, to the knowledge Knowledge of CAC, the Company, each other party parties thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary(except, in each case, subject to Creditors’ Rights, except as would not, individually such enforcement may be limited by the Enforceability Exceptions); (iii) CAC is not in breach or default in the aggregate, be reasonably likely to have a Company Material Adverse Effectany material respect, and neither no event has occurred that with the Company nor passage of time or giving of notice or both would constitute such a breach or default in any of its Subsidiariesmaterial respect by CAC, noror permit termination or acceleration by the other party, under such CAC Material Contract; and (iv) to the knowledge Knowledge of the CompanyCAC, any no other party to a any CAC Material Contract is in breach or violation of default in any provision of, or in default under, any Material Contract, material respect and no event has occurred that, that with or without notice, lapse the passage of time or both, giving of notice or both would constitute such a breachbreach or default by such other party, violation or default, except for breaches, violations permit termination or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company acceleration by CAC under any CAC Material Adverse Effect. A copy of each Material Contract has previously been delivered to ParentContract.
Appears in 2 contracts
Sources: Business Combination Agreement (Wisekey International Holding S.A.), Business Combination Agreement (Columbus Acquisition Corp/Cayman Islands)
Material Contracts. (a) Except for this AgreementAll Contracts, including amendments thereto, required to be filed with the SEC as an exhibit to any Company SEC Documents filed on or after January 1, 2021 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. All such filed Contracts, to the extent publicly available, shall be deemed to have been made available to Parent.
(b) In addition to the Contracts described in Section 4.12(a), the Company has made available to Parent a true, correct and complete copy of each Contract (other than a Company Benefit Plan) in effect as of the date hereof, neither hereof to which any of the Company nor Acquired Companies is a party or by which any of its Subsidiaries is a party to properties or assets are bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) that:
(i) would be required to be filed by the Company as is a “material contract” (as such term is defined in item Item 601(b)(10) of Regulation S-K of the SECExchange Act);
(ii) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected is required to be material described pursuant to Item 404 of Regulation S-K promulgated under the CompanySecurities Act or is otherwise a Company Related-Party Agreement;
(iii) (A) limits in contains any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” compete or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status exclusivity provisions with respect to any material obligations thatline of business or geographic area that restricts the business of the Acquired Companies or their Affiliates, after or that otherwise restricts the Effective Timelines of business conducted by the Acquired Companies or their Affiliates or the geographic area in which the Acquired Companies or their Affiliates may conduct business, would apply to Parent or any of its Subsidiariesin each case, including upon consummation of the Company and its Subsidiariestransactions contemplated by this Agreement;
(iv) (A) is constitutes an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money Indebtedness obligation of the Company or any Subsidiary Acquired Companies with a principal amount as of the Company in excess of date hereof greater than $100 million 5,000,000 or relating to any interest rate caps, interest rate collars or hedging (B) is a guarantee by the Company including interest rates, currency, commodities or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 millionderivatives);
(v) grants requires the Acquired Companies to make any investment (A) rights in the form of first refusala loan, rights of first negotiation capital contribution, preferred equity investment or preferred equity investment or similar pre-emptive rightstransaction) in, or (B) putspurchase or sell, calls as applicable, equity interests of, any Person or assets, including through a pending purchase or sale of assets, merger, consolidation or similar rightsbusiness combination transaction, to any person that (other than the Company, a wholly-owned Subsidiary together with all of the Company interests, assets and properties subject to such requirement in such Contract) have a fair market value or a wholly-owned Subsidiary purchase price in excess of the MLP) with respect to any asset that is material to the Company$1,500,000;
(vi) was entered into evidences a loan to settle any material litigation and which imposes material ongoing obligations on the Person (other than a Wholly Owned Company or Subsidiary) by any of its Subsidiariesthe Acquired Companies in an amount in excess of $1,000,000;
(vii) limits or restricts the ability of the Company or relates to any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stockjoint venture, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or strategic alliance of any of the Acquired Companies with a third party;
(viii) provides for a right of any Person (other than the Acquired Companies) to receive fees or receive a profits interest in, invest, join or partner in (whether characterized as a contingent fee, profits interest, equity interest or otherwise), or have the right (a “Participation Interest”) to any of the foregoing in any proposed or anticipated investment opportunity, joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than partnership with respect to any wholly-owned Subsidiary of current or future real property in which Acquired Company has or will have a material interest, including those transactions or properties identified, sourced, produced or developed by such Person (such Contracts, collectively, the Company or wholly-owned Subsidiary of the MLP“Participation Agreements”);
(ix) relates contains covenants expressly limiting, in any material respect, the ability of the Acquired Companies to the acquisition sell, transfer, pledge or disposition otherwise dispose of any material assets or business or assets (other than of the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company or any of its Subsidiaries has any liability in excess of $100 million in any transaction or series of related transactionsAcquired Companies;
(x) relates to the settlement (Aor proposed settlement) of any pending or threatened Action, in writing, other than any settlement that is a material joint operating agreement fully covered by insurance or indemnification (JOA) which is reasonably expected to be received), or (B) defines any material area provides solely for the payment in cash of mutual interest (AMI); orless than $2,000,000;
(xi) is (A) a Contract Ground Lease Document, (B) a Material Space Lease, (C) an Educational Institution Property Agreement or (D) a Construction Contract;
(xii) expressly obligates the Acquired Companies to conduct business with any third party on a preferential or exclusive basis or that contain most favored nation provisions;
(xiii) grants any buy/sell, put option, call option, redemption right, option to purchase, a marketing right, a forced sale, tag or drag right or a right of first offer, right of first refusal or right that is similar to any of the foregoing, pursuant to the terms of which any Acquired Company could be required to purchase or sell the applicable equity interests of any Person or any real property or any other material assets, rights or properties of the Acquired Companies or any Minority Equity Joint Ventures (any of the foregoing, a “Transfer Right”);
(xiv) provides for the acquisition, disposition, assignment, transfer or ground leasing (whether by merger, purchase or sale of assets or stock or otherwise) of any real property (including any Company Property or Minority JV Real Property to the extent such Contract was executed on or after January 1, 2019), which Contract is pending or has outstanding obligations as of the date of this Agreement that are reasonably likely to be set forth in excess of $3,000,000;
(xv) pursuant to which any Acquired Company manages, is a development manager of, or the leasing agent of any real properties of a third party under which the aggregate annual payments or other consideration to any of the Acquired Companies thereunder is more than $500,000; or
(xvi) except to the extent such Contract is described in the clauses above or on Section 3.21(a)(xi) Schedule 4.20 of the Company Disclosure SchedulesSchedule or is a Company Benefit Plan, calls for (i) aggregate payments by, or other consideration from, any of the Acquired Companies of more than $10,000,000 over the remaining term of such Contract or (ii) annual aggregate payments by, or other consideration from, any of the Acquired Companies of more than $5,000,000.
(c) Each Contract in any of the categories set forth in Section 4.12(a), (b) Each such Contract described in clauses and (ie) through (x) above to which any of the Acquired Companies is a party or by which it is bound as of the date hereof is referred to herein as a “Material Contract”. Each , and as set forth on Schedule 4.12 of the Company Disclosure Letter.
(d) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Material Contract is legal, valid, binding and enforceable on the each Acquired Company that is a valid and legally binding obligation of the Company and its Subsidiaries as applicable party thereto and, to the knowledge Knowledge of the Company, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rightseffect, except as would notmay be limited by bankruptcy, individually insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at Law). None of the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, Acquired Companies nor, to the knowledge Knowledge of the Company, any other party to a Material Contract thereto, is in breach or violation of any provision of, or in default under, any Material Contract, and no event or condition has occurred that, with notice or without notice, lapse of time or both, would constitute a violation, breach or default under any Material Contract, except where in each case such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect. A copy None of each the Acquired Companies has received written notice of any violation or default under, or owes any termination, cancellation or other similar fees or any liquidated damages with respect to, any Material Contract, except for violations, defaults, fees or damages that, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect. There are no disputes pending or, to the Knowledge of the Company, threatened with respect to any Material Contract, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to a Material Contract has previously been delivered to Parentterminate for default, convenience or otherwise any Material Contract, in each case except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(e) No Person other than an Acquired Company manages or operates any of the Company Properties or Minority JV Real Property on behalf of any Acquired Company or Minority Equity Joint Venture.
Appears in 2 contracts
Sources: Merger Agreement (American Campus Communities Inc), Merger Agreement (American Campus Communities Inc)
Material Contracts. (a) Except for this Agreement, as Section 3.16 of the date hereofCompany Disclosure Schedule sets forth a list of all Company Material Contracts (as hereinafter defined). The Company has heretofore made available to Parent correct and complete copies of all material written contracts and agreements (and all amendments, neither modifications and supplements thereto and all side letters to which the Company nor or any of its Subsidiaries subsidiaries is a party affecting the obligations of any party thereunder) to which the Company or bound any of its subsidiaries is a party or by which any agreementof its properties or assets are bound, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) that:
including all: (i) would be required to be filed by (A) employment, severance, change in control, termination, labor, collective bargaining or consulting agreements (but excluding personal service contracts), (B) non-competition contracts, and (C) indemnification contracts with officers and directors of the Company as a “material contract” (as such term is defined in item 601(b)(10) or any of Regulation S-K of the SEC);
its subsidiaries; (ii) includes partnership or joint venture agreements; (iii) agreements for the pending sale, option to sell, right of first refusal, right of first offer or any continuing other contractual right to sell, dispose of, or lease (in excess of 10,000 square feet), by merger, purchase or sale of assets or stock or otherwise, (A) the Company Properties or any other real property or (B) except as in the usual, regular and ordinary course of business consistent with past practice, any personal property; (iv) loan or credit agreements, letters of credit, bonds, mortgages, indentures, guarantees, or other contingent payment obligations (including any “earn-out” agreements or indemnification obligations) arising in connection with the acquisition or disposition instruments evidencing indebtedness for borrowed money by the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Company;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent subsidiaries or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in such agreement pursuant to which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money may be incurred, or evidencing security for any of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
foregoing; (v) grants (A) rights of first refusalagreements that purport to limit, rights of first negotiation curtail or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts restrict the ability of the Company or any of its Subsidiaries subsidiaries to declare compete in any geographic area or pay dividends or make distributions in respect line of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 millionbusiness, other than with respect to any whollyexclusive lease provisions, non-owned Subsidiary of compete provisions and other similar leasing restrictions entered into by the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products in the usual, regular and ordinary course of business consistent with past practice) pursuant to which practice contained in the Company Space Leases and in other recorded documents by which real property was conveyed by the Company to any user or to hire or solicit the hire for employment of any of its Subsidiaries has any liability in excess of $100 million in any transaction individual or series of related transactions;
group; (xvi) (A) is a material joint operating agreement (JOA) contracts or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract agreements that would be required to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedules.
(b) Each such Contract described in clauses (i) through (x) above is referred to herein filed as a “Material Contract”. Each Material Contract is a valid and legally binding obligation of the Company and its Subsidiaries as applicable and, an exhibit to the knowledge of the Company, each other party thereto, and is in full force and effect and enforceable Form 10-K or Forms 10-Q filed by the Company or with the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parent.SEC since January 1,
Appears in 2 contracts
Sources: Merger Agreement (JDN Realty Corp), Merger Agreement (Developers Diversified Realty Corp)
Material Contracts. (a) Except for this Agreement, agreements filed as exhibits to the Company SEC Documents or as set forth in Section 3.23(a) of the Company Disclosure Schedules, as of the date hereofof this Agreement, neither the Company nor any of its Subsidiaries is a party to or expressly bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation Contract (“Contract”excluding any Company Benefit Plan) that:
(i) would be required to be filed by the Company as constitute a “material contract” (as such term is defined in item Item 601(b)(10) of Regulation S-K of the SECSecurities Act);
(ii) includes is a Company Real Property Lease pursuant to which the Company or any continuing of its Subsidiaries leases real property that (A) has remaining rental obligations in excess of $50 million or (B) is integral to the operations of the business of the Company and its Subsidiaries, taken as a whole;
(iii) contains restrictions on the right of the Company or any of its Subsidiaries to engage in activities competitive with any Person or to solicit customers or suppliers anywhere in the world, other than restrictions (A) pursuant to limitations on the use by the Company or its Subsidiaries of rail lines set forth in the agreements conveying those lines or granting rights to operate them that do not, individually or in the aggregate, materially impair the Company’s operations in accordance with its current and future operating plan or (B) that are part of the terms and conditions of any “requirements” or similar agreement under which the Company or any of its Subsidiaries has agreed to procure goods or services exclusively from any Person; or (C) that are not material to the business of the Company and its Subsidiaries, taken as a whole;
(iv) grants “most favored nation” status that, following the Mergers, would apply to Parent and its Subsidiaries, including the Company and its Subsidiaries;
(v) provides for the formation, creation, operation, management or control of any material joint venture, material partnership or other contingent payment obligations similar material arrangement with a third party;
(including vi) is an indenture, credit agreement, loan agreement, note, or other Contract providing for indebtedness for borrowed money of the Company or any “earn-out” if its Subsidiaries (other than indebtedness among the Company and/or any of its Subsidiaries) in excess of $150 million;
(vii) is a settlement, conciliation or indemnification obligationssimilar Contract that would require the Company or any of its Subsidiaries to pay consideration of more than $40 million after the date of this Agreement or that contains material restrictions on the business and operations of the Company or any of its Subsidiaries or materially disrupts the business of the Company or any of its Subsidiaries as currently conducted;
(viii) arising in connection with (A) provides for the acquisition or disposition by the Company or any of its Subsidiaries of any business which payment obligations are (whether by merger, sale of stock, sale of assets or would otherwise), or any real property, that would, in each case, reasonably be expected to be material to result in the Company;
(iii) (A) limits in any material respect either the type of business in which the Company receipt or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of making by the Company or any Subsidiary of the Company of future payments in excess of $100 million or (B) pursuant to which the Company or any of its Subsidiaries will acquire any interest, or will make an investment, in any other Person, other than another Subsidiary, of more than $100 million;
(ix) is an acquisition agreement that contains material “earn-out” or other material contingent payment obligations;
(x) obligates the Company or any Subsidiary of the Company to make any future capital investment or capital expenditure outside the Ordinary Course of Business and in excess of $75 million in any calendar year;
(xi) provides for the procurement of services or supplies from a guarantee Company Top Supplier by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rightsSubsidiaries, or (B) puts, calls or similar rights, provides for sales to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on Top Customer by the Company or any of its Subsidiaries;
(viixii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viiixiii) other than any sales and marketing Contracts entered into in the Ordinary Course of Business, is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) Contract pursuant to which the Company or any of its Subsidiaries has any liability is a party, or is otherwise bound, and obligated to make or receive payments in excess of $100 million in any transaction or series calendar year which Contract has a term of related transactions;
at least three (x3) years from the later of the date hereof and the date of such Contract, and the contracting counterparty of which (A) is a material joint operating agreement (JOA) Governmental Entity or (B) defines to the Knowledge of the Company, has entered into such Contract in its capacity as a prime contractor or other subcontractor of any material area of mutual interest (AMI)Contract with a Governmental Entity and such Contract imposes upon the Company obligations or other liabilities due to such Governmental Entity; or
(xixiv) is a Contract required pursuant to be set forth on Section 3.21(a)(xiwhich (A) the Company or any of its Subsidiaries is granted any license or other right with respect to Intellectual Property of another Person, where such Contract is material to the business of the Company Disclosure Schedules.
or any of its Subsidiaries (bother than non-exclusive licenses for commercially available software that have been granted on standardized, generally available terms); or (B) the Company or any of its Subsidiaries grants to another Person any material license or other material right with respect to any Company Intellectual Property (other than non-exclusive licenses or similar rights granted to (1) direct or indirect customers or resellers in connection with their use, sale or resale of the Company’s or its Subsidiaries’ goods or services, or (2) service providers in connection with their provision of services for or on behalf of the Company or any Company Subsidiaries). Each such Contract of the type described in clauses (i) through (xxiv) above of this Section 3.23(a) is referred to herein as a “Company Material Contract.”
(b) True, correct and complete copies of each Company Material Contract have been publicly filed with the SEC prior to the date of this Agreement or otherwise made available to Parent. Each Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract where such breach or default would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. To the Knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is a valid and legally binding obligation of the Company and its Subsidiaries as applicable or the Subsidiary of the Company that is party thereto and, to the knowledge Knowledge of the Company, of each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each caseeffect, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to ParentEnforceability Exceptions.
Appears in 2 contracts
Sources: Merger Agreement (Union Pacific Corp), Merger Agreement (Norfolk Southern Corp)
Material Contracts. (a) Except for this Agreement, as As of the date hereof, neither except as set forth in Section 3.13 of the Company nor any Diageo Disclosure Schedule, none of its Subsidiaries the Business Entities is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture (a) employment or other legally binding obligation (“Contract”) that:
(i) would be required to be filed by the Company as a “material contract” (as such term is defined in item 601(b)(10) consulting agreement with an individual requiring payments of Regulation S-K of the SEC);
(ii) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Company;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company base compensation in excess of $100 million 250,000 per year; (b) distributor agreement which is not terminable on one year's (or less) notice; (Bc) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or similar contract or agreement; (d) contract which is terminable by the other similar agreement party or arrangement relating to the formation, creation, operation, management or parties thereto upon a change of control of any partnership, limited liability company or joint venture in which of the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 millionBusiness Entities, other than with respect to any wholly-owned Subsidiary such contracts the termination of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company or any of its Subsidiaries has any liability in excess of $100 million in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedules.
(b) Each such Contract described in clauses (i) through (x) above is referred to herein as a “Material Contract”. Each Material Contract is a valid and legally binding obligation of the Company and its Subsidiaries as applicable and, to the knowledge of the Company, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, have or reasonably be reasonably likely expected to have a Company Pillsbury Material Adverse Effect, and neither ; (e) contract or agreement that materially limits or purports to materially limit the Company nor ability of any of its Subsidiariesthe Business Entities or any Affiliates of a Business Entity to compete in any material line of business or in any material geographic area; (f) any material contract or agreement between or among one or more Business Entities on the one hand and Diageo or any Continuing Affiliate or any officer or director of any of the Business Entities on the other hand; or (g) other contract, agreement or arrangement, entered into other than in the ordinary course of business, involving an estimated total future payment or payments in excess of $1,000,000. The contracts required to be so listed are referred to herein as "Business Material Contracts." With respect to all Business Material Contracts, (i) none of the Business Entities, Diageo or any Continuing Affiliate, nor, to the knowledge of the CompanyDiageo's or Pillsbury's knowledge, any other party to a any such Business Material Contract is in breach thereof or violation of default thereunder, and (ii) there does not exist under any provision of, or in default underthereof, any Material Contract, and no event has occurred that, with the giving of notice or without notice, the lapse of time or both, would constitute such a breach, violation breach or default, except for such breaches, violations or defaults that and events which in the case of clauses (i) and (ii) would not, individually or in the aggregate, have or reasonably be expected to have a Company Pillsbury Material Adverse Effect. A copy Diageo and Pillsbury have made available to General Mills true and correct copies of each all Business Material Contract has previously been delivered to ParentContracts.
Appears in 2 contracts
Sources: Merger Agreement (Diageo PLC), Agreement and Plan of Merger (General Mills Inc)
Material Contracts. (a) Except for this Agreement, the Partnership Benefit Plans and agreements filed as exhibits to the Partnership SEC Documents, as of the date hereofof this Agreement, neither none of the Company nor Partnership, the General Partner or any of its their Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) thatby:
(i) would be required to be filed by the Company as a any “material contract” (as such term is defined in item Item 601(b)(10) of Regulation S-K of the SEC);
(ii) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Company;
(iii) Contract that (A) limits in expressly imposes any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations restriction on the Company right or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company Partnership or any of its Subsidiaries to declare compete with any other person or pay dividends acquire or make distributions dispose of the securities of any other person or (B) contains an exclusivity or “most favored nation” clause that restricts the business of the Partnership or any of its Subsidiaries in respect of their capital stock, partner interests, membership interests or other equity interestsa material manner;
(viiiiii) is a material partnershipany mortgage, note, debenture, indenture, security agreement, guaranty, pledge or other agreement or instrument evidencing indebtedness for borrowed money or any guarantee of such indebtedness of the Partnership or any of its Subsidiaries in an amount in excess of $25 million, other than (A) such indebtedness among the Partnership and its wholly-owned Subsidiaries or (B) such indebtedness obligations of SESH;
(iv) any joint venture, partnership or limited liability company, joint venture company agreement or other similar agreement or arrangement Contract relating to the formation, creation, operation, management or control of any partnershipjoint venture, partnership or limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 millioncompany, other than with respect to any wholly-owned Subsidiary of such Contract solely between the Company Partnership and its Subsidiaries or wholly-owned Subsidiary of among the MLPPartnership’s Subsidiaries;
(ixv) relates to any Contract expressly limiting or restricting the acquisition or disposition ability of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company Partnership or any of its Subsidiaries has to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, limited liability company interests or other equity interests, as the case may be;
(vi) any liability acquisition Contract that contains “earn out” or other contingent payment obligations, or remaining indemnity or similar obligations, that could reasonably be expected to result in payments after the date hereof by the Partnership or any of its Subsidiaries in excess of $100 million in any transaction or series of related transactions;25 million; and
(xvii) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedules.
(b) Each such Contract described in clauses (i) through (x) above is referred to herein as a “Material Contract”. Each Material Contract is a valid and legally binding obligation of the Company and its Subsidiaries as applicable and, to the knowledge of the Company, each other party thereto, and is in full force and effect and enforceable by the Company lease or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party sublease with respect to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to ParentPartnership Leased Real Property.
Appears in 2 contracts
Sources: Merger Agreement (Energy Transfer LP), Merger Agreement (Enable Midstream Partners, LP)
Material Contracts. (a) Except for this Agreement, as of set forth in the SEC Reports filed prior to the date hereofof this Agreement or Schedule 3.17, neither the Company nor any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) thatby:
(i) would be required to be filed by the Company as a “any "material contract” " (as such term is defined in item Item 601(b)(10) of Regulation S-K of the SEC);
(ii) includes any continuing contract or other contingent payment obligations (including agreement for the purchase of materials or personal property from any “earn-out” supplier or indemnification obligations) arising in connection with for the acquisition furnishing of services to the Company or disposition any of its Subsidiaries that individually involves future aggregate annual payments by the Company or any of its Subsidiaries of any business which payment obligations are $500,000 or would reasonably be expected to be material to the Companymore;
(iii) any contract or agreement for the sale, license or lease (Aas lessor) limits in any material respect either the type of business in which by the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage of services, materials, products, supplies or the manner other assets, owned or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of leased by the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including that individually involves future aggregate annual payments to the Company and or any of its SubsidiariesSubsidiaries of $500,000 or more;
(iv) (A) is an indentureany contract, loan agreement or credit Contract, loan note, mortgage Contract instrument relating to or other Contract representing, or any guarantee of, evidencing indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than in the Company or a wholly-owned Subsidiary of the Company in excess amount of $100 million250,000 or more;
(v) grants (A) rights of first refusal, rights of first negotiation any non-competition agreement or similar pre-emptive rightsany other agreement or obligation which purports to limit in any material respect the manner in which, or (B) putsthe localities in which, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability business of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interestsmay be conducted;
(viiivi) is a material partnership, limited liability company, joint venture any voting or other similar agreement governing how any shares of Common Stock shall be voted; or
(vii) any contract, agreement or arrangement relating to the formationallocate, creation, operation, management share or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more otherwise indemnify for Taxes. The foregoing contracts and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant agreements to which the Company or any of its Subsidiaries has any liability in excess of $100 million in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) party or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required are bound are collectively referred to be set forth on Section 3.21(a)(xi) of the herein as "Company Disclosure SchedulesMaterial Contracts."
(b) Each such Contract described in clauses (i) through (x) above is referred to herein Except as a “Material Contract”. Each set forth on Schedule 3.17(b), each Company Material Contract is a valid and legally binding obligation on the Company or any of its Subsidiaries of the Company and its Subsidiaries as applicable and, to the knowledge of the Company, each other party thereto, and is in full force and effect effect, and enforceable by the Company or any of its Subsidiaries of the applicable SubsidiaryCompany, in as applicable, has performed all obligations required to be performed by it to date under each case, subject to Creditors’ RightsCompany Material Contract, except as would notwhere such noncompliance or nonperformance, individually or in the aggregate, has not had and would not reasonably be reasonably likely expected to have a Company Material Adverse Effect. The Company does not know, and neither the Company nor has given or received notice of, any of its Subsidiaries, violation or default under (nor, to the knowledge of the Company, does there exist any other party to condition which with the passage of time or the giving of notice or both would result in such a Material Contract is in breach violation or violation of any provision of, or in default under, ) any Company Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute except where such a breach, violation or default, except for breaches, violations or defaults that would notdefaults, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parent.
Appears in 2 contracts
Sources: Merger Agreement (D&b Acquisition Sub Inc), Merger Agreement (Dave & Busters Inc)
Material Contracts. (a) Except as disclosed in Section 4.18 of the PDN Disclosure Schedule, and except for this Agreement, as of the date hereof, neither the Company PDN nor any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, notearrangement, mortgage, indenture commitment or other legally binding obligation (“Contract”) thatunderstanding:
(i) would be required to be filed by the Company as that constitutes a “material contract” (as such term is defined in item 601(b)(10) partnership, joint venture, technology sharing or similar agreement between PDN or any of Regulation S-K of the SEC)its Subsidiaries and any other person;
(ii) includes with respect to the service of any continuing directors, officers, employees, or independent contractors or consultants that are natural persons, involving the payment of $100,000 or more in any 12 month period, other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition than those that are terminable by the Company PDN or any of its Subsidiaries on no more than 30 days’ notice without penalty;
(iii) that limits the ability of PDN or any business of its Subsidiaries to compete or enter into in any line of business, in any geographic area or with any person, in each case, which payment obligations are limitation or requirement would reasonably be expected to be material to the CompanyPDN and its Subsidiaries taken as a whole;
(iiiiv) with or to a labor union, works council or guild (Aincluding any collective bargaining agreement or similar agreement);
(v) limits relating to the use or right to use Intellectual Property, including any license or royalty agreements, other than an agreement entered into in any material respect either the type ordinary course of business and that is not material to PDN;
(vi) that provides for indemnification by PDN to any person, other than an agreement entered into in which the Company or its Subsidiaries ordinary course of business and that is not material to PDN;
(or in which Parent vii) between PDN or any of its Subsidiaries after the Effective Time) may engage and any current or the manner former director or locations in which any officer of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent PDN or any of its Subsidiaries, including the Company and its Subsidiariesor any affiliate of any such person (other than an PDN Benefit Plan);
(ivviii) with respect to (A) is an indentureIndebtedness, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company any capital lease obligations to any person other than PDN or any of its Subsidiaries, (C) any obligations to any person other than PDN or any of its Subsidiaries in respect of letters of credit and bankers’ acceptances, (D) any indebtedness to any person other than PDN or any of its Subsidiaries under interest rate swap, hedging or similar agreements, (E) any obligations to pay to any person other than PDN or any of its Subsidiaries the deferred purchase price of property or services, (F) indebtedness secured by any Lien on any property owned by PDN or any of its Subsidiaries even though the obligor has not assumed or otherwise become liable for the payment thereof, or (G) any guaranty of any such indebtedness obligations described in clauses (A) through (F) of any person other than the Company PDN or a wholly-owned Subsidiary any of the Company its Subsidiaries, in each case, having an outstanding amount in excess of $100 million100,000 individually or $250,000 in the aggregate;
(vix) grants that is material to PDN or that contains any so called “most favored nation” provision or similar provisions requiring PDN to offer to a person any terms or conditions that are at least as favorable as those offered to one or more other persons;
(Ax) pursuant to which any agent, sales representative, distributor or other third party markets or sells any PDN Product;
(xi) pursuant to which PDN or any Subsidiary is a party granting rights of first refusal, rights of first negotiation offer or similar pre-emptive rights, rights to acquire any business or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary assets of the Company PDN or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the CompanySubsidiary;
(vixii) was entered into relating to settle any material litigation and which imposes material ongoing obligations on the Company purchase or any sale of its Subsidiariesassets outside the ordinary course of business of PDN;
(viixiii) limits relating to the issuance of any securities of PDN or restricts the ability any Subsidiary;
(xiv) pursuant to which any material asset of the Company PDN or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interestsis leased;
(viiixv) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating relates to the formationpurchase of (A) any equipment entered into since December 31, creation2013 and (B) any materials, operationsupplies, management or control inventory since December 31, 2013, other than any agreement which, together with any other related agreement, involves the expenditure by the PDN of less than $100,000;
(xvi) that represents a purchase order with any partnership, limited liability company or joint venture supplier for the purchase of inventory items in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest an amount in excess of $100 million, other than with respect to any wholly-owned Subsidiary 100,000 of the Company or wholly-owned Subsidiary of the MLPmaterials;
(ixxvii) relates pursuant to which PDN or any Subsidiary is a party and having a remaining term of more than one (1) year after the acquisition date hereof or disposition involving a remaining amount payable thereunder (either to or from PDN) as of the date hereof, of at least $100,000;
(xviii) that involves the payment of $250,000 or more in any 12-month period after the date hereof; or
(xix) that would prevent, delay or impede the consummation, or otherwise reduce the contemplated benefits, of any business of the transactions contemplated by this Agreement. PDN has previously made available to PDN or assets its representatives complete and accurate copies of each Contract of the type described in this Section 4.18(a) (other than collectively referred to herein as “PDN Material Contracts”).
(b) All of the purchase and sale of crude oil and products PDN Material Contracts were entered into at arms’ length in the ordinary course of business consistent and are valid and in full force and effect, except to the extent they have previously expired in accordance with past practice) pursuant to which the Company or their terms. Neither PDN nor any of its Subsidiaries has given or received a notice of cancellation or termination under any liability in excess PDN Material Contract, or has, or is alleged to have, and to the knowledge of $100 million in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) PDN, none of the Company Disclosure Schedulesother parties thereto have, violated any provision of, or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both would constitute a default under the provisions of, any PDN Material Contract.
(bc) Each such Contract described Neither PDN nor any Subsidiary of PDN is in clauses (i) through (x) above is referred to herein as a “breach of or default under the terms of any PDN Material Contract”, except for any such breach or default that has not had and would not reasonably be expected to have, individually or in the aggregate, a PDN Material Adverse Effect. To the knowledge of PDN, no other party to any PDN Material Contract is in breach of or default under the terms of any PDN Material Contract except for any such breach or default that has not had and would not reasonably be expected to have, individually or in the aggregate, a PDN Material Adverse Effect. Each PDN Material Contract is a valid and legally binding obligation of PDN or the Company and its Subsidiaries as applicable Subsidiary of PDN which is party thereto and, to the knowledge of the CompanyPDN, of each other party thereto, and is in full force and effect effect, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and enforceable by (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the Company discretion of the court before which any proceeding therefor may be brought.
(d) Neither PDN nor any Subsidiary of PDN is subject to any continuing obligations or restrictions under the Alliance Agreement between Monster Worldwide Inc. and PDN or the applicable SubsidiaryDiversity Recruitment Partnership Agreement, in each casedated as of November 6, subject 2012, between PDN and LinkedIn Corporation (including under any amendment to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute either such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parentagreement).
Appears in 2 contracts
Sources: Merger Agreement (Ladurini Daniel), Merger Agreement (Professional Diversity Network, Inc.)
Material Contracts. (a) Except for this Agreement, as Section 6.9 of the date hereof, neither iGambit Disclosure Schedule provides a true and complete list of each of the Company nor following contracts to which iGambit or any of its Subsidiaries is a party to or bound by any agreementother than this Agreement (collectively, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (the “ContractiGambit Material Contracts”) that:):
(i) would be required All leases for real property used by iGambit or any of its Subsidiaries and all leases of personal property and any Contract affecting any right, title or interest in or to be filed by the Company as a “material contract” (as such term is defined in item 601(b)(10) of Regulation S-K of the SEC)real property;
(ii) includes All Contracts with Persons who are Service Providers, and all iGambit Plans;
(iii) Any Contract involving financing or borrowing of money, or evidencing indebtedness; any continuing liability for borrowed money; any letters of credit; any obligation for the deferred purchase price of property in excess of $25,000; or other contingent payment obligations (including guaranteeing in any “earn-out” or indemnification obligations) arising way any Contract in connection with any Person;
(iv) Any joint venture, partnership, cooperative arrangement or any other Contract involving a sharing of profits;
(v) Any Contract with any Governmental Authority;
(vi) Any Contract with respect to the acquisition discharge, storage or disposition by removal of effluent, waste or pollutants;
(vii) Any Contract for the Company purchase or sale of any iGambit Assets or assets of or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to other than in the Company;
(iii) (A) limits in any material respect either the type ordinary course of business in which or for the Company option or its Subsidiaries (preferential rights to purchase or in which Parent sell any iGambit Assets or any assets of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(viiviii) limits Any Contract containing covenants not to compete in any line of business or restricts with any Person in any geographical area or that would otherwise result in iGambit or any of its Subsidiaries being bound by, or subject to, any non-compete or other restriction on the ability operation or scope of its businesses, including the iGambit Business;
(ix) Any Contract related to the acquisition of a business or the equity of any other Entity or the sale of iGambit or any of its Subsidiaries or any of the Company iGambit Assets or any assets of any of its Subsidiaries;
(x) Any other Contract which (i) provides for payment or performance by either party thereto having an aggregate value of $25,000 or more; (ii) is not terminable without payment or penalty on thirty (30) days (or less) notice; or (iii) is between, inter alia, iGambit or any of its Subsidiaries and an Affiliate thereof;
(xi) Any proposed arrangement of a type that, if entered into, would be a Contract described in any of Section 6.9(a)(i) through 6.9(a)(x) above.
(b) True and complete copies of each written iGambit Material Contract and true and complete written summaries of each oral iGambit Material Contract (including all amendments, supplements, modifications and waivers thereto) have been provided to Clinigence by iGambit.
(c) Each iGambit Material Contract is currently valid, in full force and effect, and is enforceable by iGambit or its Subsidiaries, as applicable, in accordance with its terms.
(d) Neither iGambit nor any of its Subsidiaries is in default, and no party has notified iGambit or any of its Subsidiaries in writing that iGambit or any of its Subsidiaries is in default, under any iGambit Material Contract. No event has occurred, and no circumstance or condition exists, that might, with or without notice or lapse of time:
(i) result in a violation or breach of any of the provisions of any iGambit Material Contract;
(ii) give any Person the right to declare a default or exercise any remedy under any iGambit Material Contract;
(iii) give any Person the right to accelerate the maturity or performance of any iGambit Material Contract or to cancel, terminate or modify any iGambit Material Contract; or
(iv) otherwise have an iGambit Material Adverse Effect in connection with any iGambit Material Contract.
(e) Neither iGambit nor any of its Subsidiaries has waived any of its rights under any iGambit Material Contract.
(f) The performance of the iGambit Material Contracts will not result in any violation of or failure by iGambit or any of its Subsidiaries to declare or pay dividends or make distributions comply in respect of their capital stock, partner interests, membership interests or other equity interests;all material respects with any Legal Requirement.
(viiig) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating The iGambit Material Contracts constitute all of the Contracts necessary to enable iGambit and its Subsidiaries to conduct the formation, creation, operation, management or control of any partnership, limited liability company or joint venture iGambit Business in the manner in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or such iGambit Business is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary currently being conducted.
(h) The consummation of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products Merger shall not result in the ordinary course of business consistent with past practice) pursuant to which the Company iGambit or any of its Subsidiaries has being bound by, or subject to, any liability in excess of $100 million in any transaction non-compete or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) other restriction on the operation or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedules.
(b) Each such Contract described in clauses (i) through (x) above is referred to herein as a “Material Contract”. Each Material Contract is a valid and legally binding obligation of the Company and its Subsidiaries as applicable and, to the knowledge of the Company, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any scope of its Subsidiariesbusinesses, nor, to including the knowledge of the Company, any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to ParentiGambit Business.
Appears in 2 contracts
Sources: Merger Agreement (iGambit, Inc.), Merger Agreement (iGambit, Inc.)
Material Contracts. (a) Except for this Agreement, as disclosed in Section 4.19 of the date hereofCompany Disclosure Schedule, neither the Company nor any of its Subsidiaries Subsidiary is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) thatof the following contracts:
(i) would be required to be filed by the Company as a “material contract” (as such term is defined in item 601(b)(10) of Regulation S-K of the SEC);
(ii) includes any continuing or other contingent payment obligations employment contracts and agreements (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Company;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (Bcompetition agreements and confidentiality agreements) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect applicable to any material obligations that, after the Effective Time, would apply to Parent or any employees of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(viiii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) contract pursuant to which the Company or any of its Subsidiaries has granted to any liability third party, or has been granted by any third party, any license, sublicense or other right to, or covenant not to be sued under, any material Intellectual Property (excluding non-exclusive licenses for off-the-shelf software that are commercially available on non-discriminatory pricing terms);
(iii) any agreement governing indebtedness for borrowed money or providing for the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset);
(iv) any partnership, joint venture or other similar agreement;
(v) any agreement relating to the acquisition or disposition of any material business (whether by merger, sale of stock, sale of assets or otherwise), other than any such agreement that was entered into before October 1, 2009 and provides for no ongoing material liabilities or obligations of the Company or any of its Subsidiaries;
(vi) any lease or sublease for real or personal property involving annual expense in excess of $100 million in any transaction or series of related transactions1,000,000;
(xvii) (A) is a material joint operating any agreement (JOA) with any director or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) officer of the Company Disclosure Schedules.or any of its Subsidiaries or with any “associate” or any member of the “immediate family” (as such terms are defined in Rules 12b-2 and 16a-1 of the ▇▇▇▇ ▇▇▇) of any such director or officer;
(bviii) Each such Contract described in clauses (i) through (x) above is referred to herein as a “Material Contract”. Each Material Contract is a valid and legally binding obligation any agreement that limits the freedom of the Company and its Subsidiaries as applicable and, to the knowledge of the Company, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries to compete in any line of business or with any Person or in any area or which would so limit the freedom of Parent or any of its Affiliates after the Effective Time; and
(ix) any other agreement, commitment, arrangement or plan not made in the ordinary course of business that is material to the Company and the Subsidiaries, nor, to the knowledge of the Company, any other party to taken as a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parentwhole.
Appears in 2 contracts
Sources: Merger Agreement (Ralcorp Holdings Inc /Mo), Merger Agreement (Conagra Foods Inc /De/)
Material Contracts. (a) Except for this AgreementContracts listed in Section 5.12(a) of the Parent Disclosure Letter or included as an exhibit to Parent's Form 10-K for the fiscal year ended December 31, 2014, as of the date hereofof this Agreement, neither the Company Parent nor any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) that:
(i) would be that is required to be filed by the Company as a “material contract” an exhibit to Parent's Annual Report on Form 10-K pursuant to Item 601(b)(2), (as such term is defined in item 601(b)(104), (9) or (10) of Regulation S-K of promulgated by the SEC);
(ii) includes any continuing pursuant to which or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by the Company respect to which Parent or any of its Subsidiaries and any director, officer, or Affiliate of Parent or any business which payment obligations are or would reasonably be expected to be material to of its Subsidiaries (excluding in each case the Company) are parties or beneficiaries;
(iii) that obligates Parent or any of its Subsidiaries to make non-contingent aggregate annual expenditures (Aother than principal and/or interest payments or the deposit of other reserves with respect to debt obligations) limits in excess of $1,000,000 and is not cancelable within 90 days without material penalty to Parent or any material of its Subsidiaries;
(iv) that contains any non-compete or exclusivity provisions with respect either the type to any line of business in which or geographic area that restricts the Company business of Parent or any of its Subsidiaries, or that otherwise restricts the lines of business conducted by Parent or any of its Subsidiaries (or the geographic area in which Parent or any of its Subsidiaries after the Effective Timemay conduct business;
(v) may engage or the manner or locations in that (A) is an agreement to which any of them may so engage in Governmental Authority is a party or under which any business (including through “non-competition” Governmental Authority has any rights or “exclusivity” provisions), obligations or (B) would require the disposition of is intended to directly or indirectly benefits any material assets Governmental Authority (including any subcontract or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to other Contract between Parent or any of its Subsidiaries, including the Company Subsidiaries and its Subsidiariesany contractor or subcontractor to any Governmental Authority);
(ivvi) (A) which is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company agreement which obligates Parent or any of its Subsidiaries to indemnify any past or present directors, officers, trustees, employees or agents of such indebtedness Parent or any of its Subsidiaries pursuant to which Parent or any person other than of its Subsidiaries is the Company or a wholly-owned Subsidiary of the Company in excess of $100 millionindemnitor;
(vvii) grants (A) rights which constitutes Indebtedness of first refusal, rights Parent or any of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, its Subsidiaries with a wholly-owned Subsidiary principal amount outstanding as of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Companydate hereof greater than $1,000,000;
(viviii) was entered into to settle that is an employment agreement with any material litigation and which imposes material ongoing obligations on the Company executive officer of Parent or any of its Subsidiaries;
(viiix) limits or restricts the ability of the Company which requires Parent or any of its Subsidiaries to declare dispose of or pay dividends acquire assets or make distributions properties (including any Parent Vessel) with a fair market value in respect excess of their capital stock$1,000,000, partner interestsor involves any pending or contemplated merger, membership interests consolidation or other equity interestssimilar business combination transaction;
(viiix) is that constitutes an interest rate cap, interest rate collar, interest rate swap or other Contract relating to a hedging transaction;
(xi) that sets forth the operational terms of a material partnershipjoint venture, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly strategic alliance of Parent or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required its Subsidiaries;
(xii) that constitutes a loan to invest in excess of $100 million, any Person (other than with respect to any wholly-a wholly owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
(ixParent) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company by Parent or any of its Subsidiaries has any liability in an amount in excess of $100 million in any transaction or series of related transactions1,000,000;
(xxiii) relating to any material ship-sales, memoranda of agreement or other vessel acquisition Contract for Newbuildings and secondhand vessels currently contracted for by Parent or other material Contracts with respect to Newbuildings and the financing thereof, including performance guarantees, counter guarantees, refund guarantees, material supervision agreement, material plan verification services agreements, and future charters;
(Axiv) pursuant to which a Parent Vessel is leased or chartered by Parent to a Third Party;
(xv) that is a material joint operating management agreement, crewing agreement or financial lease (JOAincluding sale/leaseback or similar arrangements) with respect to any Parent Vessel involving annual payments in excess of $50,000, other than any such agreement or (B) defines any material area of mutual interest (AMI)financial lease that is terminable by Parent or its Subsidiaries without fee or penalty upon 90 days’ or less prior notice; or
(xixvi) is that if breached or terminated could reasonably be expected to have a Contract required to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedules.
(b) Parent Material Adverse Effect. Each such Contract described in clauses (i) through (xxvi) above to which Parent or any of its Subsidiaries is a party or by which it is bound is referred to herein as a “Parent Material Contract.”. Each
(b) Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect, each Parent Material Contract is a valid legal, valid, binding and legally binding obligation enforceable on Parent and each of the Company and its Subsidiaries as applicable that is a party thereto and, to the knowledge of the CompanyParent, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rightseffect, except as would notmay be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at Law). Except as, individually or in the aggregate, have not had and would not reasonably be reasonably likely expected to have a Company Parent Material Adverse Effect, Parent and neither the Company nor any each of its Subsidiaries, norSubsidiaries has performed all obligations required to be performed by it prior to the date hereof under each Parent Material Contract and, to the knowledge of the CompanyParent, any each other party thereto has performed all obligations required to a be performed by it under such Parent Material Contract is in breach prior to the date hereof. Neither Parent nor any of its Subsidiaries has received any claim, notice or violation other communication (whether oral or written) of any provision of, violation or in default under, under any Parent Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Parent Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parent.
Appears in 2 contracts
Sources: Merger Agreement (Genco Shipping & Trading LTD), Merger Agreement (Baltic Trading LTD)
Material Contracts. (a) Except for For purposes of this Agreement, as a “Material Contract” means each of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) that:
following: (i) would be required to be filed by the Company as a any “material contract” (as such term is defined in item Item 601(b)(10) of Regulation S-K of under the SECSecurities Act);
; (ii) includes any continuing Contract with any employee, individual consultant or other contingent independent contractor that provides for annual compensation in excess of $150,000 and is not immediately terminable by the Company or any of its Subsidiaries without cost or liabilities, including any Contract requiring the Company to make a payment obligations to any employee on account of the transactions contemplated by this Agreement (including the Merger) or any “earn-out” or indemnification obligations) arising Contract that is entered into in connection with this Agreement; (iii) any collective bargaining agreement or other Contract with a labor organization; (iv) any material Contract providing for indemnification or any guaranty (in each case, under which the Company has continuing obligations as of the date hereof); (v) any material Contract containing any covenant, commitment or other obligation (A) limiting the right of the Company or any of its Subsidiaries to engage in any line of business, to make use of any Registered Company Owned Intellectual Property or to compete with any Person in any line of business, (B) granting any exclusive rights, (C) containing a “most favored nation” or similar provision, (D) prohibiting the Company or any of its Subsidiaries (or, after the Effective Time, Parent) from engaging in business with any Person or levying a fine, charge or other payment for doing so or (E) otherwise prohibiting or limiting the right of the Company or its Subsidiaries to develop, sell, distribute or manufacture any products or services, other than such Contracts that may be cancelled without continuing material obligations, restrictions or liabilities to the Company upon notice of thirty (30) days or less; (vi) any Contract (A) relating to the license, disposition or acquisition or disposition by the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be a material to the Company;
(iii) (A) limits in any material respect either the type amount of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practiceor (B) pursuant to which the Company or any of its Subsidiaries has will acquire any liability in excess of $100 million material ownership interest in any transaction other Person or series other business enterprise other than the Company’s Subsidiaries; (vii) any Contract for the acquisition or disposition of related transactions;
any business; (viii) any material dealer, distributor, sales agency, joint marketing agreement, to jointly market any product, technology or service; (ix) any material Contract pursuant to which the Company or any of its Subsidiaries have continuing obligations to jointly develop any Intellectual Property Rights that will not be owned solely by the Company or one of its Subsidiaries; (x) any joint venture agreements, material development agreements, or material outsourcing arrangements (A) is a including material joint operating agreement (JOA) or (B) defines Contracts to assemble, manufacture and package any material area of mutual interest (AMICompany Product); or
(xi) is a any mortgages, indentures, guarantees, material loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or material extension of credit, other than trade receivables and payables; (xii) any settlement Contract, other than (a) releases entered into with former employees or independent contractors of the Company in the ordinary course of business or (b) settlement Contracts only involving the payment of cash (which has been paid) in amounts that do not exceed $250,000 in any individual case; (xiii) any Contract required to be set forth on Section 3.21(a)(xiwith the federal government, any foreign government, any state or local government or any division, subdivision, department, agency or instrumentality thereof; (xiv) any Lease of, or purchase or sale Contract with respect to, any real property; (xv) any Contract with any healthcare provider (e.g., doctors and contract research organizations) of the Company Disclosure Schedules.
or any of its Subsidiaries that may not be cancelled without material liability to the Company upon notice of thirty (b30) Each such days or less; (xvi) any Contract described that provides for payment obligations by the Company or any of its Subsidiaries of $100,000 or more in any individual case and is not disclosed pursuant to clauses (i) through (xxv) above above; and (xvii) any Contract, the termination or breach of which would be reasonably expected to have a Company Material Adverse Effect and is referred not disclosed pursuant to herein clauses (i) through (xv) above. Other than Material Contracts filed as a “Material Contract”. Each Material Contract is a valid and legally binding obligation an exhibit to the Company Reports, Section 5.1(t) of the Company Disclosure Letter contains a complete and accurate list of all Material Contracts to which the Company or any of its Subsidiaries as applicable andis a party or which bind or affect their respective properties or assets, and identifies each subsection of Section 5.1(t) that describes such Material Contract. The Company has delivered or made available to Parent complete and correct copies of each such Material Contract. To the knowledge of the Company, each other party theretoMaterial Contract is valid and binding on the Company (and/or each such Subsidiary of the Company, as the case may be) and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effecteffect, and neither the Company nor any of its SubsidiariesSubsidiaries party thereto, nor, to the knowledge of the Company, any other party to a Material Contract thereto, is in breach or violation of any provision of, or in default under, in any material respect, any such Material Contract, and to the knowledge of the Company no event has occurred that with notice or lapse of time or both would constitute such a breach or default thereunder in any material respect by the Company or any of its Subsidiaries, or, to the knowledge of the Company, any other party thereto. Neither the Company nor any of its Subsidiaries has received any written notice or other communication regarding any actual or alleged violation or breach of or default under, or intention to cancel or modify, any Material Contract, and no event . Neither the Company nor any of its Subsidiaries has occurred that, entered into any standstill agreement with any third party (or without notice, lapse other agreement containing a standstill provision) that does not automatically terminate upon the execution of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parentthis Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Biomimetic Therapeutics, Inc.), Merger Agreement (Wright Medical Group Inc)
Material Contracts. (aSection 5.17(a) Except for this Agreementof the Parent Disclosure Schedule lists, as of the date hereof, neither each of the Company nor following types of Contracts to which the Parent or any of its Subsidiaries is a party or by which any of the Parent, its Subsidiaries or any of their respective properties is bound (such Contracts required to or bound by any agreementbe so listed, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (the “ContractParent Material Contracts”) that:):
(ia) any Contract that would be required to be filed by the Company Parent as an exhibit to a “material contract” (as such term is defined in item 601(b)(10) of Regulation Sregistration statement on Form S-1 or an annual report on Form 10-K of filed by the SEC)Parent;
(iib) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with Contract that limits the acquisition or disposition by ability of the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Company;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage to compete in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business or with any Person or in any geographic area, or that restricts the right of the Company or Parent and its Subsidiaries orto sell to or purchase from any Person or to hire any Person, after or that grants the Effective Time, Parent other party or its Subsidiaries or (C) grants any third Person “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any type of its Subsidiaries, including the Company and its Subsidiariesanalogous rights;
(ivc) (A) is an indenture, loan or credit Contract, loan note, mortgage any Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any a joint venture, partnership, limited liability company or joint venture in which other similar arrangement;
(d) any Contract evidencing or relating to Indebtedness;
(e) any Contract involving the Company ownsacquisition or disposition, directly or indirectly, of (i) any voting Person or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary substantially all of the Company assets thereof, or wholly-owned Subsidiary of the MLP(ii) any business entity;
(ixf) relates any Contract relating to the acquisition or disposition employment of any business Person;
(g) any Contract that by its terms provides for the aggregate payment or assets receipt by the Parent and its Subsidiaries of more than $250,000 over the remaining term of such Contract;
(other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practiceh) any Contract pursuant to which the Company Parent or any of its Subsidiaries has any liability in excess of $100 million in any transaction continuing indemnification, guarantee, “earn-out” or series of related transactionsother contingent payment obligations;
(xi) any Contract that obligates the Parent or any of its Subsidiaries to make any capital commitment or investment in, or loan to, any Person (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMIother than the Parent and its Subsidiaries); or;
(xij) is a any Contract required to be set forth between the Parent or any of its Subsidiaries, on Section 3.21(a)(xi) the one hand, and any director or officer, or direct or indirect stockholder, of the Company Disclosure Schedules.Parent or any of its Subsidiaries, on the other hand, excluding any Parent Plan;
(bk) Each such any Contract described with respect to any Parent Leased Real Property;
(l) any Contract with any Governmental Entity;
(m) any Contract that requires a notice or consent in clauses connection with the transactions contemplated hereby, or that otherwise contains a provision relating to “change of control” or “assignment by operation of law” or an analogous provision, or that would otherwise reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated hereby; and
(in) through (x) above any Contract that is referred otherwise material to herein the Parent and its Subsidiaries, taken as a “Material Contract”whole. Each Parent Material Contract is a valid and legally binding obligation of on the Company and Parent or its Subsidiaries as applicable party thereto and, to the knowledge Knowledge of the CompanyParent, each other party thereto, and is in full force and effect and enforceable in accordance with its terms (except with respect to any Enforceability Exceptions). The Parent and each of its Subsidiaries and, to the Knowledge of the Parent, each other party thereto, has performed all material obligations required to be performed by it under each Parent Material Contract. There is no material default under any Parent Material Contract by the Company Parent or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, norSubsidiaries or, to the knowledge Knowledge of the CompanyParent, any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contractthereto, and no event or condition has occurred thatthat constitutes or, with after notice or without notice, lapse of time or both, would constitute constitute, a material default on the part of the Parent or any of its Subsidiaries or, to the Knowledge of the Parent, any other party thereto, nor, as of the date hereof, has the Parent or any of its Subsidiaries received any notice of any such a breach, violation or material default, except for breaches, violations event or defaults that would not, individually or in condition. The Parent has made available to the aggregate, reasonably be expected to have a Company on the Virtual Data Room true and complete copies of all Parent Material Adverse Effect. A copy of each Material Contract has previously been delivered to ParentContracts.
Appears in 2 contracts
Sources: Merger Agreement (Fitlife Brands, Inc.), Merger Agreement (iSatori, Inc.)
Material Contracts. (a) Except for this Agreement, Section 4.15(a) of the Company Disclosure Schedule sets forth a list as of the date hereof, neither of this Agreement of each of the following Contracts to which the Company nor or any of its Subsidiaries Company Subsidiary is a party or by which it is bound (each such Contract listed or required to be so listed, and each of the following Contracts to which the Company or any Company Subsidiary becomes a party or by which it becomes bound by any agreementafter the date of this Agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (a “Company Material Contract”) that:):
(i) would be required to be filed by the Company as any Contract that is a “material contract” (as such term is defined in item Item 601(b)(10) of Regulation S-K of the SEC)K;
(ii) includes any continuing Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or any Company Subsidiary to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, such freedom of the Surviving Company, Parent, the Company or any of their respective Affiliates after the Effective Time, (B) contains any material exclusivity or “most favored nation” obligations or restrictions or similar provisions that are binding on the Company or any Company Subsidiary (or, after the Effective Time, that would be binding on the Surviving Company, Parent or any of their respective Affiliates), (C) otherwise limits or restricts, in any material respect, the Company or any Company Subsidiary (or, after the Effective Time, the Surviving Company, Parent or any of their respective Affiliates) from hiring or soliciting any Person for employment, or (D) levies a fine, charge or other contingent payment obligations for doing any of the foregoing;
(iii) promissory notes, loan agreements, indentures, evidences of Indebtedness or other instruments providing for or relating to the lending of money, including any “earn-out” sale and leaseback transactions, capitalized leases and other similar financing arrangements or indemnification obligations) arising in connection with that provides for the acquisition guarantee, support, indemnification, assumption or disposition endorsement by the Company or any of its Subsidiaries Company Subsidiary of, or any similar commitment by the Company or any Company Subsidiary with respect to the obligations, liabilities or Indebtedness of any business which other Person, in each case in a principal amount in excess of $1,000,000;
(iv) any Contract (other than the Company Credit Facilities) restricting the payment obligations are of dividends or would reasonably be expected the making of distributions to be material to shareholders of the Company or the repurchase of stock or other equity of the Company;
(iiiv) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) Contract that would require the disposition of any material assets or line of business of the Company or its Subsidiaries orany Company Subsidiary as a result of the consummation of the Integrated Mergers;
(vi) any joint venture, profit-sharing, partnership, strategic alliance, collaboration or other similar agreements;
(vii) any Contract pursuant to which the Company or any Company Subsidiary receives from any Third Party a license or similar right to any Intellectual Property that is material to the Company or any Company Subsidiary, other than licenses with respect to non-customized Software that (A) is generally available and licensed pursuant to standard commercial terms, and (B) with an annual cost of less than $250,000;
(viii) any Contract pursuant to which the Company or any Company Subsidiary grants to any Third Party a license or similar right to any Intellectual Property that is material to the Company or any Company Subsidiary, other than non-exclusive licenses granted in the ordinary course of business;
(ix) Contracts with (A) the top ten (10) customers of the Company based on revenues for the fiscal year ended December 31, 2022 and the nine months ended September 30, 2023 and (B) the top ten (10) vendors of the Company based on costs for the year ended December 31, 2022 and the nine months ended September 30, 2023;
(x) any Related Party Contract;
(xi) any Contract involving the settlement of any action or action threatened in writing (or series of related actions) (other than any actions covered by insurance) that will (A) involve payments after the Effective Time, Parent or its Subsidiaries date hereof in excess of $500,000 or (CB) impose material monitoring or reporting obligations outside the ordinary course of business consistent with past practice;
(xii) any Contract for the purchase or sale of real property, in each case entered into or completed on or after January 1, 2021 in excess of $5,000,000;
(xiii) any Leases which provide for annual lease payments in excess of $200,000;
(xiv) any collective bargaining agreement;
(xv) any Contract that grants “most favored nation” status any right of first refusal, right of first offer or similar right with respect to any material obligations thatassets, after the Effective Time, would apply to Parent rights or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money properties of the Company or any Company Subsidiary of the Company in excess of $100 million or (B) is a guarantee other than any such Contracts that are terminable by the Company or any of its Subsidiaries of such indebtedness of Company Subsidiary on ninety (90) days or less notice without any person required material payment or other material conditions, other than the Company or a wholly-owned Subsidiary condition of the Company in excess of $100 million;notice); and
(vxvi) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset Contract that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets asset (other than any Contract or arrangement that provides solely for the purchase and sale acquisition of crude oil and equipment or products in the ordinary course of business consistent with past practicebusiness) pursuant to and under which the Company or any of its Subsidiaries Company Subsidiary has any liability in excess of $100 million in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) or (B) defines continuing obligation, including any material area of mutual interest (AMI); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedules“earn-out” or similar contingent payment obligations.
(b) Each such Contract described in clauses (i) through (x) above is referred The Company has made available to herein as Parent a “true, correct and complete copy of each Material Contract”. Each Material Contract is a valid and legally binding obligation All of the Company Material Contracts are, subject to the Bankruptcy and its Subsidiaries Equity Exceptions, valid and binding obligations of the Company or a Company Subsidiary (as applicable the case may be) and, to the knowledge Knowledge of the Company, each of the other party parties thereto, and is in full force and effect and enforceable by in accordance with their respective terms against the Company or Company Subsidiaries (as the applicable Subsidiarycase may be) and, to the Knowledge of the Company, each of the other parties thereto (except for such Company Material Contracts that are terminated after the date of this Agreement in each case, subject to Creditors’ Rightsaccordance with Section 6.1(k)), except as where the failure to be valid and binding obligations and in full force and effect and enforceable has not had and would notnot reasonably be expected to have, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect. To the Knowledge of the Company, and neither no Person is seeking to terminate or challenge the validity or enforceability of any Company Material Contract. Neither the Company nor any of its SubsidiariesCompany Subsidiary, nor, nor to the knowledge Knowledge of the Company, any of the other party to a Material Contract is in breach or violation of parties thereto has violated any provision of, or in default under, committed or failed to perform any Material Contract, and no event has occurred that, act that (with or without notice, lapse of time or both, ) would constitute such a breachdefault under any provision of, violation and neither the Company nor any Company Subsidiary has received written notice that it has violated or defaultdefaulted under, any Company Material Contract, except for breaches, those violations and defaults (or defaults potential defaults) that have not had and would notnot reasonably be expected to have, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parent.
Appears in 2 contracts
Sources: Merger Agreement (WillScot Mobile Mini Holdings Corp.), Merger Agreement (McGrath Rentcorp)
Material Contracts. (a) Except for this AgreementOther than the Contracts, including amendments thereto, required to be filed as an exhibit to any report of the date hereofCompany filed pursuant to the Exchange Act of the type described in Item 601(b)(10) of Regulation S-K promulgated by the SEC, neither each of which was filed in an unredacted form, the Company nor Disclosure Schedule sets forth a true and correct list of:
(i) each Contract to which the Company or any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) that:
(i) would be required to be filed by the Company as a “material contract” (as such term is defined in item 601(b)(10) of Regulation S-K of the SEC);
(ii) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Company;
(iii) that (A) limits in expressly imposes any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations restriction on the Company right or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare compete with any other Person, (B) contains any right of first refusal, right of first offer or pay dividends similar term that materially restricts the right or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary ability of the Company or wholly-owned Subsidiary any of its Subsidiaries to acquire or dispose of the MLP;securities of another Person; or (C) expressly imposes any material restriction on the right or ability of the Company or any of its Subsidiaries to engage or compete in any line of business or in any geographic area or that contains exclusivity or non-solicitation provisions (excluding customary employee non-solicitation provisions with customers and partners); or
(ixii) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant each Contract to which the Company or any of its Subsidiaries has any liability is a party to or bound that was entered into not in excess the ordinary course of $100 million business and would purport to bind, or purport to be applicable to the conduct of, Parent or its Subsidiaries (other than the Company or its Subsidiaries) in any transaction materially adverse respect (whether before or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMIafter the Effective Time); or
(xi) is a Contract . Contracts, including amendments thereto, required to be set forth on Section 3.21(a)(xi) filed as an exhibit to any report of the Company Disclosure Schedules.
(bfiled pursuant to the Exchange Act of the type described in Item 601(b)(10) Each such Contract of Regulation S-K promulgated by the SEC, together with any Contracts of the type described in clauses (i) through and (xii) above is above, are referred to herein as a “Company Material ContractContracts”. Each .
(b) A true and correct copy of each Company Material Contract has previously been made available to Parent and each such Contract is a valid and legally binding obligation agreement of the Company and or its Subsidiaries as applicable Subsidiary party thereto and, to the knowledge Knowledge of the Company, each other party any counterparty thereto, and is in full force and effect effect, and enforceable by none of the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, Subsidiaries nor, to the knowledge Knowledge of the Company, any other party to a Material Contract thereto is in default or breach or violation in any respect under the terms of any provision of, or in default under, any such Company Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations such default or defaults that breach as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to ParentEffect on the Company.
Appears in 2 contracts
Sources: Merger Agreement (S1 Corp /De/), Merger Agreement (Fundtech LTD)
Material Contracts. (a) Except for this Agreement, Contracts filed as exhibits to the Company SEC Documents or as set forth in Section 3.20 of the Company Disclosure Schedule, as of the date hereofof this Agreement, neither the Company nor any of its Subsidiaries is a party to any of the following Contracts which are currently in force or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture under which the Company has continuing liabilities or other legally binding obligation (“Contract”) thatobligations:
(i) would be required to be filed by the Company as a any “material contract” (as such term is defined in item Item 601(b)(10) of Regulation S-K under the Securities Act or that would be required to be disclosed under Item 404 of Regulation S-K under the SECSecurities Act);
(ii) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by Contract between the Company or any Subsidiary of its Subsidiaries the Company, on the one hand, and any officer, director or affiliate (other than a wholly-owned Subsidiary of the Company) of the Company (or of any business which payment obligations are or would reasonably be expected to be material to Subsidiary of the Company;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through their respective “non-competitionassociates” or “exclusivityimmediate family” provisionsmembers (as such terms are defined in Rule 2b-2 and Rule 6a-1 of the Exchange Act), (B) would require on the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiariesother hand, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage any Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of pursuant to which the Company or any Subsidiary of the Company in excess has an obligation to indemnify such officer, director, affiliate or family member, but not including any Company Benefit Plans;
(iii) any Contract that imposes any restriction on the right or ability of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries to compete (or that following the Effective Time will restrict the ability of such indebtedness of any person Parent and its Subsidiaries (other than the Company and its Subsidiaries) to compete) with any other person in any line of business, therapeutic area or a wholly-owned Subsidiary geographic region or that contains any standstill or similar agreement pursuant to which the Company or its Subsidiaries has agreed not to acquire or dispose of the securities of another person;
(iv) any Contract that obligates the Company in excess or any of $100 millionits Subsidiaries (or following the Effective Time, obligates Parent or its Subsidiaries (other than the Company and its Subsidiaries)) to conduct business with any third party on a preferential or exclusive basis or which contains “most favored nation” or similar covenants;
(v) any material licensing agreement (other than commercial agreements which include licenses for the use of trademarks of the Company or any of its Subsidiaries) that contains indemnities or other obligation including “earnout” or other contingent payment obligations that would reasonably be expected to result in the receipt or making of future payments in excess of $250,000 in the twelve (12)-month period following the date hereof;
(vi) any Company Collective Bargaining Agreement to which the Company or a Company Subsidiary is a party;
(vii) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $250,000;
(viii) any Contract that grants (A) rights any right of first refusal, rights right of first negotiation offer or similar pre-emptive rights, or right to a third party (B) puts, calls or similar rights, to any person (other than including stockholders of the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to assets, rights or properties of the CompanyCompany or its Subsidiaries;
(viix) was entered into any Contract that provides for the acquisition or disposition of any assets (other than acquisitions or dispositions of assets in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and with any outstanding obligations as of the date of this Agreement that are material to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(viix) limits other than arrangements entered into in the ordinary course of business, (A) any joint venture, partnership or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture company agreement or other similar agreement or arrangement Contract relating to the formation, creation, operation, management or control of any partnershipjoint venture, partnership or limited liability company or joint venture in which company, other than any such Contract solely between the Company ownsand its Subsidiaries or among the Company’s Subsidiaries, directly and (B) any strategic alliance, collaboration, co-promotion or indirectlyresearch and development project Contract, which, in the case of clause (B), is material to the Company and its Subsidiaries, taken as a whole;
(xi) any voting Contract expressly limiting or economic interest restricting the ability of 15% the Company or more and has invested any of its Subsidiaries to (A) make distributions or is contractually required declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the case may be, (B) make loans to invest the Company or any of its Subsidiaries, (C) pledge capital stock or other equity interests of the Company or prohibits the issuance of any guarantee or (D) grant liens on the property of the Company or any of its Subsidiaries;
(xii) any Contract that obligates the Company or any of its Subsidiaries to make any loans, advances or capital contributions to any person in excess of $100 million, other than with respect to any wholly-owned Subsidiary of 250,000 individually or $1,000,000 in the Company or wholly-owned Subsidiary of aggregate in the MLPnext twelve (12) months;
(ixxiii) relates to the acquisition any settlement agreement (A) involving more than $50,000 or disposition of any business or assets (other than the purchase and sale of crude oil and products B) not entered into in the ordinary course of business consistent business, in each case with past practicea former employee of the Company or any of its Subsidiaries or an independent contractor in connection with the cessation of such employee’s or independent contractor’s employment;
(xiv) any Contract that requires the Company, or any successor, to, or acquirer of the Company, to make any payment to another Person as a result of a change of control of the Company or gives another Person a right to receive or elect to receive payment from the Company in the event of a change of control of the Company;
(xv) any Contract that requires or may require (A) any severance, termination, tax gross-up or similar payment in excess of $250,000, (B) any bonus, deferred compensation or similar payment in excess of $250,000 or (C) granting or accelerating the vesting of, or otherwise modify, any equity award agreement other than accelerated vesting under the Company Stock Plans; and
(xvi) any Contract (A) granting the Company or any of its Subsidiaries any right to use any (1) Intellectual Property directly relating to the Company Products or (2) material Intellectual Property (other than Intellectual Property covered by clause (A)(1)), in each case, other than licenses in respect of commercially available software, (B) pursuant to which the Company or one of its Subsidiaries grants any third person the right to use (except pursuant to material transfer agreements), enforce or register any (1) Intellectual Property directly related to the Company Products, or (2) material Intellectual Property (other than Intellectual Property covered by clause (B)(1)), in each case that is owned by the Company or any of its Subsidiaries has Subsidiaries, including any liability in excess of $100 million in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) license agreements, coexistence agreements and covenants not to ▇▇▇ or (BC) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) restricting the right of the Company Disclosure Schedules.
(b) Each such Contract described or its Subsidiaries to use, register, transfer, license, distribute or enforce any material Intellectual Property that is owned by the Company or any of its Subsidiaries. All contracts of the types referred to in clauses (i) through (xxvii) above is (whether or not set forth on Section 3.20 of the Company Disclosure Schedule) are referred to herein as “Company Material Contracts.” The Company has made available to Parent prior to the date of this Agreement a “Material Contract”. Each complete and correct copy of each Company Material Contract is a valid and legally binding obligation as in effect on the date of this Agreement.
(b) Neither the Company nor any Subsidiary of the Company and its Subsidiaries as applicable is in material breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in material breach of or default under the terms of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company or the Subsidiary of the Company that is party thereto and, to the knowledge of the Company, of each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each caseeffect, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, norEnforceability Exceptions. There are no material disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract. Neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to a any Company Material Contract is in breach to terminate for default, convenience or violation of otherwise any provision of, or in default under, any Company Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parent.
Appears in 2 contracts
Sources: Merger Agreement (Endologix Inc /De/), Merger Agreement (TriVascular Technologies, Inc.)
Material Contracts. (a) Except for Contracts (including all amendments and modifications thereto) filed as exhibits to the Company SEC Documents as of the date of this Agreement, or as set forth in Section 4.18 of the Company Disclosure Schedule, as of the date hereofof this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound by any agreementof the following types of Contracts (each such Contract, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (a “Material Contract”) that:):
(i) would any Contract that cannot be required terminated on not more than 6 months’ notice;
(ii) any Contract relating to be filed indebtedness (whether incurred, assumed, guaranteed or secured by any asset) or any financial guaranty thereof in principal amount exceeding (i) $25,000,000 (as a borrower or guarantor) or (ii) $5,000,000 (as a lender) in each case, other than (A) any Contract solely among or between the Company and any of its Subsidiaries, (B) financial guarantees entered into in the ordinary course of business or (C) a hedging, derivative, swap or other similar Contract;
(iii) any collective bargaining agreement or other similar Contract with any labor union, workers council or other similar labor organization (each, a “Labor Agreement”);
(iv) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any material business, capital stock, equity interests or portion of assets of any other Person or any material real property (whether by merger, sale of stock, sale of assets or otherwise) or any consolidation, business combination, recapitalization or reorganization, in each case, with a purchase price in excess of $1,000,000, pursuant to which the Company or any of its Subsidiaries has outstanding performance, payment or indemnification obligations;
(v) any agreement to which the Company or any of its Subsidiaries is a party that is material to the conduct of the business as currently conducted, pursuant to which (A) the Company or such Subsidiary grants a license or right to any third Person to use any material Owned Intellectual Property Rights (other than non-exclusive licenses granted by the Company and its Subsidiaries to customers for the use of a Company product or service, to service providers and suppliers in connection with the provision of goods and services to the Company and its Subsidiaries, or to other third parties through APIs and similar technologies for purposes of interconnectivity between systems, in each case in the ordinary course of business), (B) any third Person grants a license or other right to the Company or such Subsidiary to any material Intellectual Property Right (other than agreements for open source Software or granting non-exclusive rights to use readily commercially available off-the-shelf Software with annual payments by the Company or any of its Subsidiaries of less than $1,000,000) or (C) the Company’s or any of its Subsidiaries’ ability to use, enforce or disclose any material Owned Intellectual Property Rights is materially affected or any agreement entered into in connection with the resolution of any material claim or dispute related to Intellectual Property Rights and under which the Company or any Subsidiary has any material ongoing obligation;
(vi) any agreement that (A) limits the freedom of the Company or any of its Subsidiaries to compete in any line of business or with any Person or in any area or that would so limit the freedom of Parent or its Affiliates or the Company or any of its Subsidiaries after the Closing, (B) provides “most favored nation” or similar provisions where the pricing, discounts or benefits to any business relation of the Company or any of its Subsidiaries changes based on the pricing, discounts or benefits offered to other business relations, (C) grants a right of first refusal or right of first offer or similar right for any line of business or assets of the Company or any of its Subsidiaries, (D) contains exclusivity obligations or restrictions binding on the Company or any of its Subsidiaries or that would be binding on Parent or any of its Affiliates after the Closing, except, in each case of clauses (A) through (D), for any agreement made in the ordinary course of business that is not material to the business of the Company or its Subsidiaries taken as a whole;
(vii) any material partnership, joint venture, strategic alliance, collaboration, co-promotion or other similar agreement or arrangement;
(viii) any agreement or arrangement with respect to profit sharing that is material to the Company and its Subsidiaries, taken as a whole, or to which the Company or any of its Subsidiaries incurred or will incur payment obligations or received or will receive payments in excess of $1,000,000;
(ix) any agreement with any director or officer of the Company or any of its Subsidiaries or with any “associate” or any member of the “immediate family” (as such terms are respectively defined in Rules 12b-2 and 16a-1 of the 1934 Act) of any such director or officer;
(x) any agreement (including any “take-or-pay” or keepwell agreement) under which (A) any Person has directly or indirectly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries or (B) the Company or any of its Subsidiaries has directly or indirectly guaranteed any liabilities or obligations of any other Person (in each case other than endorsements for the purpose of collection in the ordinary course of business);
(xi) any stockholder, investor rights or registration rights agreement;
(xii) any Contract that is a settlement, conciliation or similar agreement with any Governmental Authority pursuant to which the Company or one of its Subsidiaries has any material outstanding obligation; and
(xiii) any other Contract, arrangement, commitment or understanding that is a “material contract” (as such term is defined in item Item 601(b)(10) of Regulation S-K of promulgated under the SEC1933 Act);
(ii) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Company;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company or any of its Subsidiaries has any liability in excess of $100 million in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedules.
(b) Each such Contract described in clauses (i) through (x) above is referred Except for breaches, violations or defaults which would not reasonably be expected to herein as a “Material Contract”. Each Material Contract is a valid and legally binding obligation of the Company and its Subsidiaries as applicable and, to the knowledge of the Company, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would nothave, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, (i) each of the Material Contracts is valid and in full force and effect and (ii) neither the Company nor any of its Subsidiaries, nor, nor to the Company’s knowledge of the Company, any other party to a Material Contract is in breach or violation of Contract, has violated any provision of, or in default under, taken or failed to take any Material Contract, and no event has occurred thatact which, with or without notice, lapse of time time, or both, would constitute a default under the provisions of such a breachMaterial Contract, violation and since January 1, 2022, neither the Company nor any of its Subsidiaries has received written notice that it has breached, violated or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company defaulted under any Material Adverse Effect. A copy of each Material Contract has previously been delivered to ParentContract.
Appears in 2 contracts
Sources: Merger Agreement (Paychex Inc), Agreement and Plan of Merger (Paycor Hcm, Inc.)
Material Contracts. (a) Except for For purposes of this Agreement, as a “Company Contract” shall mean any of the date hereof, neither following agreements to which the Company nor or any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) thatis bound:
(i) would be required to be filed by the Company as any agreement that is a “material contract” (as such term is defined in item Item 601(b)(10) of Regulation S-K of under the SECSecurities Act);
(ii) includes any continuing agreement that is not terminable for convenience by the Company or other contingent payment obligations its Subsidiary upon not more than 30 days’ notice at no charge, that (including A) purports to restrain or limit the ability of the Company or any of its Affiliates to compete or engage in any line of business or the localities in which the Company or any of its Affiliates may conduct business, (B) provides for exclusivity by the Company or any of its Affiliates with respect to any products or services sold or purchased by the Company or any of its Affiliates, (C) extends “earn-outmost favored nation” or indemnification obligationssimilar pricing to any Person, or (D) arising provides for the non-solicitation of any Person;
(iii) any agreement that requires, or would reasonably be expected to result in, any payment by the Company or its Subsidiaries in connection with excess of $1,000,000 in the Company’s fiscal year ending February 28, 2011 or any subsequent fiscal year or which requires, or would reasonably be expected to result in, any payment to the Company or its Subsidiaries in excess of $1,000,000 in the Company’s fiscal year ending February 28, 2011 or any subsequent fiscal year;
(iv) any agreement relating to Indebtedness owed by the Company or any of its Subsidiaries to third parties;
(v) any agreement relating to the acquisition or disposition disposition, directly or indirectly, of any business (whether by merger, sale of stock, sale of assets or otherwise) under which the Company or any of its Subsidiaries has continuing material obligations;
(vi) any agreement with an executive officer of the Company, other than agreements under which the Company and its Subsidiaries have no further liabilities or obligations and no continuing rights;
(vii) any agreement of indemnification or any guaranty of a material obligation by the Company or any of its Subsidiaries of a third party, other than any business which payment obligations are agreement entered into in connection with the sale or would reasonably be expected license by or to be material to the Company;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness products or services in the ordinary course of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 millionbusiness;
(vviii) grants any material agreement with any Governmental Authority providing for the purchase of the Company’s products by such Governmental Authority;
(Aix) rights of first refusalany agreement set forth in clauses (i), rights of first negotiation (iii), (iv) or (vi) above or clause (xiii) below containing any “change in control” or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) provisions with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(viix) limits any collective bargaining agreements (including memoranda of understanding or restricts the ability extension agreements);
(xi) any agreement with any beneficial owner of more than 5% of the outstanding Company Common Stock;
(xii) any settlement agreement which materially affects the conduct of the Company’s or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interestsSubsidiaries’ businesses;
(viiixiii) any other agreement that is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formationCompany and its Subsidiaries, creation, operation, management taken as a whole; and
(xiv) any agreement that by its terms would prohibit or control of any partnership, limited liability company or joint venture in which materially delay the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary consummation of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company Merger or any of its Subsidiaries has any liability in excess of $100 million in any transaction or series of related transactions;the other transactions contemplated by this Agreement.
(xb) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi3.15(b) of the Company Disclosure Schedules.
(b) Each such Schedule lists each Company Contract described in clauses (i) through (x) above is referred existence on the date hereof. The Company has previously made available to herein as a “Material Contract”Parent true, complete and correct copies of each Company Contract in existence on the date hereof. Each Material Contract is a valid and legally binding obligation All of the Company Contracts are valid and binding on the Company or its Subsidiaries Subsidiary, as applicable the case may be, and, to the knowledge of the Company’s Knowledge, each other party thereto, and is are in full force and effect and enforceable by the Company or the applicable Subsidiary, in each caseeffect, subject to Creditorsapplicable bankruptcy, insolvency, moratorium or other similar Laws relating to creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, rights and neither general principles of equity. Neither the Company nor any of its SubsidiariesSubsidiaries has, nor, and to the knowledge Company’s Knowledge, none of the Companyother parties thereto have, violated in any other party to a Material Contract is in breach or violation of material respect any provision of, or in default under, committed or failed to perform any Material Contractact, and no event has occurred thator condition exists, which with or without notice, lapse of time or both, both would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in material default under the aggregate, reasonably be expected to have a provisions of any Company Material Adverse Effect. A copy Contract and neither the Company nor any of each Material Contract its Subsidiaries has previously been delivered to Parentreceived written notice of any of the foregoing.
Appears in 2 contracts
Sources: Merger Agreement (Clearwater Paper Corp), Merger Agreement (Cellu Tissue Holdings, Inc.)
Material Contracts. (a) Except for For all purposes of and under this Agreement, as a “Material Contract” shall mean any of the date hereoffollowing, neither excluding the Company nor any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) thatAccel Agreement:
(i) would be required to be filed by the Company as a any “material contract” (as such term is defined in item Item 601(b)(10) of Regulation S-K of the SEC, other than those agreements and arrangements described in Item 601(b)(10)(iii)) with respect to the Company and its Subsidiaries, taken as whole;
(ii) includes any employment or consulting Contract (in each case, under which the Company has continuing obligations as of the date hereof) with any executive officer or other contingent payment obligations employee of the Company or its Subsidiaries or member of the Company Board providing for an annual base salary in excess of $175,000;
(including iii) any “earn-out” or indemnification obligationsmaterial Contract with any of the twenty (20) arising in connection with largest customers of the acquisition or disposition Company and its Subsidiaries, determined on the basis of revenues received by the Company or any of its Subsidiaries for the fiscal year ended December 31, 2008 (the “Material Customer Agreements”);
(iv) any Contract containing any covenant (A) limiting the right of the Company or any of its Subsidiaries to engage in any material line of business which payment obligations are or would to compete with any Person in any line of business that is or could reasonably be expected to be material to the Company;
, or (iiiB) prohibiting the Company or any of its Subsidiaries from engaging in business with any Person or levying a fine, charge or other payment for doing so, in each case other than any such Contracts that (Ax) limits in any may be cancelled without material respect either the type of business in which liability to the Company or its Subsidiaries upon notice of ninety (90) days or less or (y) are not, individually or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions)aggregate, (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(ivv) any Contract (A) is an indenture, loan relating to the disposition or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee acquisition by the Company or any of its Subsidiaries after the date of such indebtedness this Agreement of any person a material amount of assets other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practicebusiness, or (B) pursuant to which the Company or any of its Subsidiaries has will acquire any liability material ownership interest in any other Person or other business enterprise other than the Company’s Subsidiaries;
(vi) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, in each case in excess of $100 million 500,000, other than (A) accounts receivables and payables, and (B) loans to direct or indirect wholly-owned Subsidiaries, in each case in the ordinary course of business consistent with past practice;
(vii) any transaction Lease or series Sublease set forth in Sections 3.15(b) and 3.15(c) of related transactionsthe Company Disclosure Letter;
(viii) any Contract providing for the payment, increase or vesting of any material benefits or compensation in connection with the transactions contemplated hereby (other than Contracts evidencing Company Options or Company Stock-Based Awards);
(ix) any Contract providing for severance in excess of $75,000 (other than those pursuant to which severance is required by applicable Law);
(x) any Contract relating to or evidencing Indebtedness of the Company or any of its Subsidiaries, in the case of each clause in the definition thereof, greater than $100,000 (A) is a material joint operating agreement (JOA) whether or (B) defines any material area of mutual interest (AMInot contingent); or;
(xi) is a any Contract providing for indemnification of any officer, director, manager or employee by the Company or its Subsidiaries;
(xii) any Contract that involves any material joint venture, partnership or similar arrangement; and
(xiii) any Company Intellectual Property Agreements required to be set forth on listed pursuant to Section 3.21(a)(xi3.16(c) of the Company Disclosure SchedulesLetter.
(b) Each such Contract described in clauses Section 3.13(b) of the Company Disclosure Letter contains a complete and accurate list of all Material Contracts to or by which the Company or any of its Subsidiaries is a party or is bound.
(ic) through (x) above is referred to herein as a “Material Contract”. Each Material Contract is a valid and legally binding obligation on the Company (and/or each such Subsidiary of the Company and its Subsidiaries as applicable and, to the knowledge of the Company, each other party thereto, ) and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effecteffect, and neither the Company nor any of its SubsidiariesSubsidiaries party thereto, nor, to the knowledge Knowledge of the Company, any other party to a Material Contract thereto, is in breach or violation of any provision of, or in default under, any such Material Contract, and no event has occurred that, that with notice or without notice, lapse of time or both, both would constitute such a breach, violation breach or default, or otherwise modify any rights or obligations thereunder by the Company or any of its Subsidiaries, or, to the Knowledge of the Company, any other party thereto, except for breaches, violations or such failures to be in full force and effect and such breaches and defaults that would not, individually or in the aggregate, reasonably be expected to not have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parent.
Appears in 2 contracts
Sources: Merger Agreement (Sumtotal Systems Inc), Merger Agreement (Vista Equity Partners Fund III LP)
Material Contracts. (a) Except for this Agreement, any Company Benefit Plan and the Contracts filed as exhibits to publicly available Company Reports, as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) that:
(i) that would be required to be filed by the Company as a “material contract” (as such term is defined in item pursuant to Item 601(b)(10) of Regulation S-K of under the SEC)Securities Act;
(ii) includes pursuant to which the Company or any Company Subsidiary has any material continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) other contingent payment obligations arising in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Companybusiness;
(iii) containing any standstill or similar provision remaining in effect pursuant to which the Company or any Company Subsidiary has agreed not to acquire securities or material assets of another Person;
(iv) that (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after following the Effective TimeMerger, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(ivv) that (A) is an a material indenture, loan or credit Contract, loan note, mortgage Contract Contract, letter of credit or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Company Subsidiary of the Company in excess of $100 million or (B) is a material guarantee by the Company or any Company Subsidiary of its Subsidiaries of such the indebtedness of any person Person other than the Company or a wholly-wholly owned Subsidiary of the Company in excess of $100 millionCompany;
(vvi) that grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person Person (other than the Company, a wholly-wholly owned Company Subsidiary of the Company or a wholly-wholly owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vivii) that was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its SubsidiariesCompany;
(viiviii) limits limiting or restricts restricting the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viiiix) that is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 1525% or more and has invested or is contractually required to invest in excess of $100 millionmore, other than with respect to any wholly-wholly owned Subsidiary of the Company or wholly-wholly owned Subsidiary of the MLP;; or
(ixx) that relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practicebusiness) pursuant to which the Company or any of its Subsidiaries has any liability in excess of $100 million 100,000,000 in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedules.
(b) . Each such Contract described in clauses (i) through (x) above is referred to herein as a “Material Contract”. Each Material Contract (and each Contract that would be a Material Contract but for the exception of having been filed as an exhibit to a publicly available Company Report) is a valid and legally binding obligation of on the Company and its Subsidiaries as applicable and, to the knowledge Knowledge of the Company, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effecteffect, and neither the Company nor any of its Subsidiaries, nor, to the knowledge Knowledge of the Company, any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parent.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Andeavor), Merger Agreement (Marathon Petroleum Corp)
Material Contracts. (a) Except for Each Company Management Agreement has been delivered by the Company or made available to Parent prior to the date of this Agreement.
(b) There is no event or condition that exists or, after notice or lapse of time or both would exist (excluding the transactions contemplated by this Agreement) that would result in a default by the Company (or its Subsidiaries), and the Company and its Subsidiaries have complied in all material respects with all material obligations, covenants and agreements required to be performed by it, under any and all transfer or financing agreements entered into in connection with the Company’s (i) financing of its VOI Receivables (collectively, the “Receivables Financing Agreements”), other than expenses in connection with the closing of such financing transactions, (ii) Indebtedness secured by its Vacation Intervals held as inventory (“Inventory Financing Agreements”) and (iii) Indebtedness incurred in connection with the acquisition of real property by the Company and its Subsidiaries for the development of vacation projects (“Acquisition Financing Agreements”).
(c) As of the date of this Agreement, except for (w) this Agreement, (x) the Company Benefit Plans, (y) Contracts filed with the SEC prior to the date hereof, or (z) as set forth on Section 3.25(c) of the Company Disclosure Schedule, no Covered Entity is a party to or bound by, as of the date hereof, neither the Company nor any of its Subsidiaries is a party to Contract (whether written or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”oral) thatwhich is:
(i) would be required to be filed by the Company as a “material contract” (as such term is defined in item Item 601(b)(10) of Regulation S-K of the SEC);
(ii) includes any continuing a loan, guarantee of Indebtedness or credit agreement, note, bond, mortgage, indenture, Contract, lease, license or other contingent payment obligations binding commitment (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Company;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including other than those between the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary Subsidiaries) or other binding obligation relating to Indebtedness of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits , or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company or any of its Subsidiaries has mortgaged, pledged or otherwise placed a Lien on any liability material portion of the assets of the Company or its Subsidiaries, in each case, in excess of $100 million 250,000;
(iii) a Contract relating to a guarantee by any Covered Entity of Indebtedness of any Person;
(iv) a Contract that requires any Covered Entity to make a loan or capital contribution to or investment in any transaction Person, other than the Silverleaf Club in the ordinary course of business, in excess of $1,000,000;
(v) a Contract relating to any acquisition (by merger, consolidation, acquisition of all or series substantially all of related transactionsthe assets or otherwise) from any Person or divestiture or disposition by any Covered Entity to any Person of properties, assets, capital stock or other Equity Interests, except for (A) acquisitions and dispositions of Vacation Intervals in the ordinary course of business or (B) relating to Receivables Financing Agreements or Inventory Financing Agreements;
(vi) a Contract that provides for the indemnification of any officer, director, manager or employee by any Covered Entity;
(vii) a Lease;
(viii) a Contract that requires any Covered Entity to make capital expenditures in excess of $250,000 in any fiscal year, or $500,000 in the aggregate;
(ix) a Contract which purports to limit the right of any Covered Entity to engage freely or compete in any line of business or to compete with any Person or operate in any location;
(x) (A) is a material Contract that creates a partnership, joint operating agreement (JOA) venture or (B) defines similar arrangement with respect to any material area portion of mutual interest (AMI); orthe business of the Company or its Subsidiaries taken as a whole;
(xi) is a Contract that relates to the development, ownership, licensing or use of Intellectual Property or Company Systems in excess of $100,000 (other than a shrink wrap or similar license for generally available “off-the-shelf” software);
(xii) a Contract with respect to interest rate or currency hedging activities by the Covered Entity;
(xiii) a settlement or similar Contract with any Governmental Entity or order or consent of a Governmental Entity to which any Covered Entity is subject involving future performance by any Covered Entity which is material to the Company and any of its Subsidiaries taken as a whole;
(xiv) a Contract that contains a “key man” or “key personnel” provision or otherwise restricts, limits or prohibits any Covered Entity, in any manner, from hiring, firing or otherwise replacing any directors, officers or employees of any Covered Entity; and
(xv) an existing agreement, not otherwise required to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedules.
(b) Each such Contract described in disclosed pursuant to clauses (i) through (xxv) above hereof that (A) requires payments by or to any Covered Entity in excess of $500,000 during any 12 month period or (B) is material to the Company and its Subsidiaries, taken as a whole (all Contracts of the type described in this Section 3.25(c), together with the Receivables Financing Agreements, Inventory Financing Agreements and the Acquisition Financing Agreements, being referred to herein as a “Company Material ContractContracts”. Each ).
(d) Assuming the validity with respect to and binding effect on the applicable counterparty thereto, each Company Material Contract is a valid and legally binding obligation of on the Company and its Subsidiaries as applicable and, to the knowledge of the Company, each other Covered Entity that is a party thereto, as applicable, and is in full force and effect and enforceable by against the Company or the applicable Subsidiary, Covered Entity in each caseaccordance with its terms, subject to Creditors’ Rights, except as would not, individually or the Bankruptcy and Equity Exceptions. Each Covered Entity has in the aggregate, all material respects performed all material obligations required to be reasonably likely performed by it to have a date under each Company Material Adverse EffectContract. To the Company’s Knowledge, and neither the each counterparty to each Company nor any of its Subsidiaries, nor, Material Contract has in all material respects performed all obligations required to be performed by it under such Company Material Contract prior to the knowledge date of the Company, any other party to a Material Contract is in breach or violation of any provision this Agreement. The Company does not have Knowledge of, or in default under, any Material Contract, and no Covered Entity has received written notice of, the existence of any event has occurred thator condition which constitutes, with or, after notice or without notice, lapse of time or both, would constitute will constitute, a material breach or violation of or material default on the part of a Covered Entity or their counterparties under any such a breachCompany Material Contract. Since December 31, violation or default2009, except for breaches, violations or defaults no Covered Entity has received any written notice that would not, individually or in the aggregate, reasonably be expected any counterparty to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered sought to Parentterminate or amend the terms of a Company Material Contract. Prior to the date of this Agreement, true and correct copies of all Company Material Contracts (as amended or modified) in effect on the date hereof are either publicly filed with the SEC or the Company has made available to Parent true and correct copies of such Company Material Contracts.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Silverleaf Resorts Inc)
Material Contracts. (a) Except for this Agreement, Section 3.20 of the Company Disclosure Letter contains a complete and correct list, as of the date hereofof this Agreement, neither of each Contract described below in this Section 3.20(a) under which the Company nor or any Company Subsidiary has any current or future rights, responsibilities, obligations or liabilities (in each case, whether contingent or otherwise) or to which any of its Subsidiaries their respective properties or assets is a party subject, in each case as of the date of this Agreement (all Contracts of the type described in this Section 3.20(a) being referred to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (herein as the “ContractCompany Material Contracts”) that:):
(i) any partnership, joint venture, strategic alliance or collaboration Contract which is material to the Company and its Subsidiaries, taken as a whole;
(ii) any Contract that (A) purports to materially limit either the type of business in which the Company or its Subsidiaries (or, after the Effective Time, Parent or its Subsidiaries) or any of their respective affiliates may engage or geographic area in which any of them may so engage in any business or (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries (or, after the Effective Time, Parent or its Subsidiaries) or any of their respective affiliates as a result of the consummation of the Transactions;
(iii) each acquisition or divestiture Contract or licensing agreement that contains representations, covenants, indemnities or other obligations (including “earn-out” or other contingent payment obligations) that would reasonably be expected to result in the receipt or making of future payments in excess of $25 million in the twelve (12) month period following the date hereof;
(iv) each Contract relating to outstanding Indebtedness of the Company or its Subsidiaries for borrowed money or any financial guaranty thereof (whether incurred, assumed, guaranteed or secured by any asset) in an amount in excess of $25 million other than (A) Contracts solely among the Company and any wholly-owned Company Subsidiary or a guarantee by the Company or any Company Subsidiary of a Company Subsidiary, (B) financial guarantees entered into in the ordinary course of business consistent with past practice not exceeding $25 million, individually or in the aggregate (other than surety or performance bonds, letters of credit or similar agreements entered into in the ordinary course of business consistent with past practice in each case to the extent not drawn upon), and (C) any Contracts relating to Indebtedness explicitly included in the consolidated financial statements in the Company SEC Documents;
(v) each Contract between the Company, on the one hand, and any officer, director or affiliate (other than a wholly-owned Company Subsidiary) of the Company or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract pursuant to which the Company has an obligation to indemnify such officer, director, affiliate or family member;
(vi) any Contract (excluding licenses for commercially available computer software that are generally available on standard terms for fees of no more than $10 million annually or in the aggregate) under which the Company or any Company Subsidiary is granted any license, option or other right or immunity (including a covenant not to be sued or right to enforce or prosecute any patents) with respect to any Intellectual Property rights of a third party, which Contract is material to the Company and the Company Subsidiaries, taken as a whole;
(vii) any Contract (excluding licenses for commercially available computer software that are generally available on standard terms for fees of no more than $10 million annually or in the aggregate) under which the Company or any Company Subsidiary has granted to a third party any license, option or other right or immunity (including a covenant not to be sued or right to enforce or prosecute any patents) with respect to any Intellectual Property rights (including any development thereof), which Contract is material to the Company and the Company Subsidiaries, taken as a whole;
(viii) any shareholders, investors rights, registration rights or similar agreement or arrangement of the Company or any of its Significant Subsidiaries;
(ix) any Contract that relates to any swap, forward, futures, or other similar derivative transaction with a notional value in excess of $25 million;
(x) any collective bargaining agreement or other Contract with any labor union;
(xi) any Contract involving the settlement of any action or threatened action (or series of related actions) which will (A) involve payments after the date hereof of consideration in excess of $25 million or (B) impose material monitoring or reporting obligations to any other Person outside the ordinary course of business; and
(xii) any Contract not otherwise described in any other subsection of this Section 3.20(a) that would be required to be filed by the Company as a “material contract” (as such term is defined in item Item 601(b)(10) of Regulation S-K of the SEC);.
(iib) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by Neither the Company nor any Company Subsidiary is in breach of or any of its Subsidiaries default under the terms of any business which payment obligations are Company Material Contract where such breach or default would reasonably be expected to be material to the Company;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (have, individually or in which Parent or any the aggregate, a Company Material Adverse Effect. To the knowledge of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary as of the Company or a wholly-owned Subsidiary of the MLP) with respect date hereof, no other party to any asset that Company Material Contract is material to in breach of or default under the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control terms of any partnershipCompany Material Contract where such breach or default would reasonably be expected to have, limited liability company individually or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant aggregate, a Company Material Adverse Effect. Except as would not reasonably be expected to which have, individually or in the aggregate, a Company or any of its Subsidiaries has any liability in excess of $100 million in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) of the Material Adverse Effect, each Company Disclosure Schedules.
(b) Each such Contract described in clauses (i) through (x) above is referred to herein as a “Material Contract”. Each Material Contract is a valid and legally binding obligation of the Company and its Subsidiaries as applicable or the Company Subsidiary which is party thereto and, to the knowledge of the Company, of each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiaryeffect, in each case, except that (i) such enforcement may be subject to Creditorsapplicable bankruptcy, insolvency, examinership, fraudulent transfer, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ Rights, except as would not, individually or in the aggregate, rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be reasonably likely subject to have a Company Material Adverse Effect, equitable defenses and neither the Company nor any of its Subsidiaries, nor, to the knowledge discretion of the Company, court before which any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably proceeding therefor may be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parentbrought.
Appears in 2 contracts
Sources: Merger Agreement (Towers Watson & Co.), Merger Agreement (Willis Group Holdings PLC)
Material Contracts. (a) Except for For all purposes of and under this Agreement, as a “Material Contract” shall mean, without duplication, any of the date hereof, neither following to which the Company nor or any of its Subsidiaries is a party to or by which any assets of the Company or any of its Subsidiaries are bound by as of the date of this Agreement (other than (i) Contracts between or among the Company and one or more Subsidiaries, on the one hand, and Parent and one or more Affiliates, on the other hand and (ii) any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) that:Company Benefit Plan):
(i) any Contract that would be required to be filed by the Company as a “material contract” (as such term is defined in item 601(b)(10pursuant to Item 601(b)(10)(i) of Regulation S-K of under the SEC)Securities Act;
(ii) includes any continuing Contract (or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection group of related Contracts with the acquisition same Person or disposition its Affiliates), other than any Lessor Lease, Lessee Lease and any other lease, license or development, redevelopment, declaration, reciprocal easement, construction Contract or similar agreement disclosed in the Company Title Insurance Policies or otherwise entered into in the ordinary course of business or any Contract relating to Indebtedness, involving (A) the payment or receipt of amounts by the Company or any of its Subsidiaries of more than $5,000,000 in the aggregate within the last twelve (12) months or (B) future payments of more than $5,000,000 that are conditioned on, in whole or in part, or required in connection with, the consummation of any business which payment obligations are or would reasonably be expected to be material to of the CompanyTransactions;
(iii) (A) limits any Contract relating to Indebtedness in any material respect either the type excess of business in which the Company $5,000,000 or its Subsidiaries (mortgaging, pledging or in which Parent or otherwise placing a Lien on any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries orwith a value in excess of $5,000,000, after restricting the Effective Time, Parent payment of dividends or other distributions of assets by any of the Company or its Subsidiaries or (C) grants “most favored nation” status with respect to providing for the guaranty of Indebtedness of any material obligations that, after the Effective Time, would apply to Parent or any Person in excess of its Subsidiaries, including the Company and its Subsidiaries$5,000,000;
(iv) (A) is an indentureany Contract that contains a put, loan call, right of first refusal or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by similar right pursuant to which the Company or any of its Subsidiaries of such indebtedness could be required to purchase or sell, as applicable, any equity interests or assets of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 millionPerson;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to wholly -owned Subsidiary of the Company;
(vi) was entered into to settle , any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture venture, strategic alliance or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or company, joint venture in or strategic alliance that is material to the Company or any of its Subsidiaries;
(vi) except for indemnification, compensation, employment or other similar arrangements between the Company or any of its Subsidiaries, on the one hand, and any current or former director or officer thereof, on the other hand, any Contract to which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or its Subsidiaries is contractually a party that would be required to invest be disclosed pursuant to Item 404 of Regulation S-K under the Securities Act in excess the Company’s Form 10-K or proxy statement pertaining to an annual meeting of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLPstockholders;
(ixvii) relates to the acquisition any Contract containing a standstill or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) similar agreement pursuant to which the Company or any of its Subsidiaries has ongoing obligations to not acquire assets or securities of any liability other party and, to the extent not entered into in excess the ordinary course of $100 million business or in connection with any Lessor Lease, Lessee Lease or other lease, license, services, development, redevelopment, construction Contract or other commercial Contract, any Contract under which the Company or any of its Subsidiaries has material ongoing indemnification obligations;
(viii) any Contract under which a sale of a majority of the consolidated assets of the Company and its Subsidiaries, taken as a whole, would require a payment by, result in a breach or constitute a default by, or result in the termination, acceleration or loss of any benefit of, the Company or any of its Subsidiaries;
(ix) any non-competition Contract or other Contract that (A) limits or purports to limit in any transaction material respect the type of business in which the Company or series its Subsidiaries (or, after the Merger Effective Time, Parent or its Affiliates) may engage, or the manner or locations in which any of related transactionsthem may so engage in any business or (B) prohibits or materially limits the right of the Company or any of its Subsidiaries to use, transfer, license, distribute or enforce any of their respective Company Intellectual Property, other than limitations on enforcement arising from non-exclusive licenses of Company Intellectual Property entered into in the ordinary course of business;
(x) any swap, cap, floor, collar, futures contract, forward contract, option and any other derivative financial instrument, contract or arrangement, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, other than (Ai) is a material joint operating agreement Contracts related to the purchase of raw materials or inventory in the ordinary course of business, (JOAii) Contracts relating to the hedging of utility expenses or (Biii) defines any material area interest rate caps, swaps and treasury locks entered into in the ordinary course of mutual interest (AMI); orbusiness;
(xi) any Contract pursuant to which the Company or any of its Subsidiaries is a party under which any third Person has granted to the Company or any of its Subsidiaries, or the Company or any of its Subsidiaries has granted to any third Person, any license, covenant or other rights to or under Intellectual Property (other than software license agreements for any third-party off-the-shelf generally commercially available software for no fee or an aggregate license fee of less than $5,000,000 per year);
(xii) any Contract required that provides for the acquisition or disposition, directly or indirectly (including by merger, purchase of equity, business combination or otherwise) of any real or personal property for aggregate consideration under such Contract in excess of $5,000,000 that is pending or pursuant to be set forth which the Company or its Subsidiaries have continuing “earn-out” or similar contingent obligations relating to purchase price adjustments;
(xiii) any Contract relating to settlement of any administrative or judicial proceedings, in each case, individually in excess of $5,000,000 or which otherwise provides for equitable relief that imposes a material obligation or restrictions on the Company, under which there are outstanding obligations (including settlement agreements) of the Company or any of its Subsidiaries;
(xiv) any Lessor Lease that provided for payments to the Company or any of its Subsidiaries in excess of $1,400,000 in 2017; and
(xv) any Collective Bargaining Agreement.
(b) Section 3.21(a)(xi3.12(b) of the Company Disclosure SchedulesLetter sets forth a complete and accurate list of all Material Contracts (with appropriate sub-section references to Section 3.12(a)) to which the Company or any of its Subsidiaries is a party as of the date of this Agreement. True and complete copies of all such Material Contracts (including all exhibits and schedules thereto) have been (i) publicly filed with the SEC and are publicly available as of the date hereof or (ii) made available to Parent.
(bc) Each such Contract described Except as would not have or result in clauses a Company Material Adverse Effect, (i) through (x) above is referred to herein as a “Material Contract”. Each each Material Contract is a valid and legally binding obligation on the Company (and/or each such Subsidiary of the Company and its Subsidiaries as applicable party thereto) and, to the knowledge Knowledge of the Company, each other party thereto, and (ii) each Material Contract is in full force and effect and (except for expiration thereof in the ordinary course in accordance with the terms thereof), enforceable by against the Company or each such Subsidiary of the applicable SubsidiaryCompany party thereto, as the case may be, in each caseaccordance with its terms, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, Enforceability Limitations and (iii) neither the Company nor any of its SubsidiariesSubsidiaries that is a party thereto, nor, to the knowledge Knowledge of the Company, any other party to a Material Contract thereto, is in breach or violation of any provision of, or in default under, any such Material Contract, and and, to the Knowledge of the Company, no event has occurred that, that with notice or without notice, lapse of time or both, both would constitute such a breachbreach or default thereunder by the Company or any of its Subsidiaries, violation or, to the Knowledge of the Company, any other party thereto, or defaultpermit termination, material modification or acceleration by any third party thereunder. As of the date hereof, neither the Company nor any of its Subsidiaries has received any written notice of termination or cancellation under any Material Contract or received any written notice of breach of or any default under any Material Contract which breach has not been cured except for breachesany termination, violations breach or defaults default that would not, individually not have or result in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parent.
Appears in 2 contracts
Sources: Merger Agreement (Brookfield Property Partners L.P.), Merger Agreement (GGP Inc.)
Material Contracts. (a) Except for this AgreementSchedule 5.18(a) of the Parent Disclosure Letter, together with the lists of exhibits contained in the Parent SEC Documents, sets forth a true and complete list (but excluding any Parent Plan), as of the date hereofentry into this Agreement, neither of the Company nor following contracts to which Parent or any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) thatparty:
(i) would be required to be filed by the Company as a each “material contract” (as such term is defined in item Item 601(b)(10) of Regulation S-K of under the SECExchange Act);
(ii) includes any continuing each agreement or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by the Company Organizational Document of Parent or any of its Subsidiaries that would, on or after the Closing Date, prohibit or restrict the ability of Parent or any of its Subsidiaries (including the Surviving Corporation and its Subsidiaries) to declare and pay dividends or distributions with respect to their capital stock, pay any Indebtedness for borrowed money, obligations or Liabilities from time to time owed to Parent or any of its Subsidiaries (including the Surviving Corporation and its Subsidiaries), make loans or advances to Parent or any of its Subsidiaries (including the Surviving Corporation and its Subsidiaries);
(iii) each contract that contains covenants that limit the ability of Parent or any of its Affiliates to compete in any business which payment obligations are or would with any person or in any geographic area or distribution or sales channel, or to sell, supply or distribute any service or product, in each case, that could reasonably be expected to be material to the Companybusiness of Parent and its Subsidiaries, taken as a whole;
(iiiiv) each contract that (A) limits in provides for material exclusive rights for the benefit of any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions)third party, (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to third party or (C) requires Parent or any of its SubsidiariesAffiliates to provide any minimum level of service, including the Company in each case which (1) are, or in a manner which is, material to Parent and its Subsidiaries;
Subsidiaries taken as a whole and (iv2) may not be terminated (Aincluding such restrictive provisions) is an indenture, loan by Parent or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee its Subsidiaries on less than 90 days’ notice without payment by the Company Parent or any of its Subsidiaries of such indebtedness any material penalty;
(v) each contract with a remaining term of more than one year from the date hereof that could require Parent or any of its Affiliates to purchase all (or a specified portion of) its total requirements of any person other than product or service from a third party or that contains “take or pay” provisions and which (A) is expected to involve the Company or a wholly-owned Subsidiary payment of the Company an amount in excess of $25 million in the aggregate during the fiscal year ending December 31, 2024 or any future fiscal year and (B) may not be terminated (including such restrictive provisions) by Parent or its Subsidiaries on less than 90 days’ notice without payment by Parent or any of its Subsidiaries of any material penalty;
(vi) each agreement evidencing any Indebtedness for borrowed money having an outstanding principal amount or outstanding commitments in excess of $25 million;
(vii) any coal supply agreement or purchase order or commitment to sell or offer to sell coal, (A) with a remaining term of more than three years from the later of the commencement of the term of the agreement and the date hereof (or, if the contract is entered into after the date of this Agreement, three years from the later of the commencement of the term of the agreement and the date the contract is entered into), (B) under which the aggregate amounts to be paid by Parent and its Subsidiaries over the remaining term of such agreement, order or commitment would reasonably be expected to exceed $100 million or (C) under which the aggregate amounts to be received by Parent and its Subsidiaries over the remaining term of such agreement, order or commitment would reasonably be expected to exceed $100 million;
(vviii) grants (A) rights of first refusalthat is a contractual royalty, rights of first negotiation production payment, net profits, earn-out or similar pre-emptive rightscontract on a material property of such Party that has a value or expected value in excess of $5 million from the date hereof, or (B) putsexcluding, calls or similar rightshowever, any of the foregoing payable pursuant to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) instrument with respect to any asset that is material to the CompanyParent Real Property;
(viix) was entered into each contract relating to settle any material litigation and which imposes material ongoing obligations on the Company disposition or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company acquisition by Parent or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any material business or any material amount of assets (other than in the Ordinary Course) with obligations remaining to be performed or Liabilities continuing after the entry into this Agreement;
(x) each contract involving any exchange traded, over-the-counter or other swap, cap, floor, collar, futures contract, forward contract, option or any other derivative financial instrument or contract including commodities, in each case, with a notional amount exceeding $100 million and a term of at least three years from the entry into the instrument or contract, in each case, other than contracts for the purchase and sale of crude oil coal, diesel fuel and products ANFO (ammonium nitrate and fuel oil) and contracts entered into as a hedging activity in the ordinary course of business Ordinary Course consistent with Parent’s past practicepractice and internal policy guidelines;
(xi) pursuant to which the Company any joint venture, partnership or similar organizational contract involving a sharing of profits or losses by Parent or any of its Subsidiaries has (or any liability contract, agreement or understanding involving any joint venture partner or any of its affiliates that relates to the applicable joint venture or the assets thereof) other than any contract entered into in excess of $100 million in any transaction or series of related transactions;the Ordinary Course which would not reasonably be expected to be material to Parent and its Subsidiaries, taken as a whole; and
(xxii) any contract to which Parent or any of its Subsidiaries is party granting to any Person an option, right of first offer or right of first refusal to purchase or acquire any assets of Parent or any of its Subsidiaries (A) is a material joint operating agreement (JOA) other than any purchase option for additional coal volumes or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required contract entered into in the Ordinary Course which would not reasonably be expected to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedulesmaterial to Parent and its Subsidiaries, taken as a whole).
(b) Each such Contract described Collectively, the contracts set forth in clauses (i) through (x) above is Section 5.18(a), whether or not set forth in the Parent Disclosure Letter, are referred to herein in this Agreement as the “Parent Contracts.” A complete and correct copy of each of the Parent Contracts has been made available to the Company (provided that order forms, purchase orders and statements of work, in each case, that do not contain any restrictive covenants or other material terms, need not be made available pursuant to this sentence, but shall nonetheless constitute Parent Contracts). Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a “Parent Material Contract”. Each Material Adverse Effect, each Parent Contract is a valid legal, valid, binding and legally binding obligation enforceable in accordance with its terms on Parent and each of the Company and its Subsidiaries as applicable that is a party thereto and, to the knowledge of the CompanyParent, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiaryeffect, in each casesubject, subject as to enforceability, to Creditors’ Rights, except . Except as has not had and would notnot reasonably be expected to have, individually or in the aggregate, be reasonably likely to have a Company Parent Material Adverse Effect, and neither the Company Parent nor any of its Subsidiaries, Subsidiaries is in breach or default under any Parent Contract nor, to the knowledge of the CompanyParent, is any other party to a Material any such Parent Contract is in breach or violation of any provision of, or in default under, any Material Contractthereunder, and no event has occurred that, that with or without notice, the lapse of time or both, the giving of notice or both would constitute such a breachdefault thereunder by Parent or its Subsidiaries, violation or or, to the knowledge of Parent, any other party thereto. As of the entry into this Agreement, there are no disputes pending or, to the knowledge of Parent, Threatened with respect to any Parent Contract and neither Parent nor any of its Subsidiaries has received any notice of the intention of any other party to any Parent Contract to terminate for default, convenience or otherwise any Parent Contract, nor to the knowledge of Parent, is any such party threatening to do so, in each case except for breaches, violations as has not had or defaults that would notnot reasonably be expected to have, individually or in the aggregate, reasonably be expected to have a Company Parent Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parent.
Appears in 2 contracts
Sources: Merger Agreement (Arch Resources, Inc.), Merger Agreement (CONSOL Energy Inc.)
Material Contracts. (a) Except for this AgreementSchedule 4.19 of the Company Disclosure Letter, together with the lists of exhibits contained in the Company SEC Documents, sets forth a true and complete list, as of the date hereofof this Agreement, neither of each of the following agreements to which or by which the Company nor or any Subsidiary of its Subsidiaries the Company is a party or to which their respective properties or assets is otherwise bound (but excluding any Company Benefit Plan, except as expressly contemplated by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”Section 4.19(a)(i) that:below):
(i) would be required to be filed by the Company as a each “material contract” (as such term is defined in item Item 601(b)(10) of Regulation S-K of under the SECExchange Act);
(ii) includes any continuing each agreement or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by Organizational Document of the Company or any of its Subsidiaries that would, on or after the Closing Date, prohibit or restrict the ability of the Surviving Corporation (or the Surviving Company) or any business which payment obligations are or would reasonably be expected to be material to the Company;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (to declare and pay dividends or in which distributions with respect to their capital stock, pay any Indebtedness for borrowed money, obligations or liabilities from time to time owed to Parent or any of its Subsidiaries (including the Surviving Corporation (or the Surviving Company) and its Subsidiaries), make loans or advances to Parent or any of its Subsidiaries (including the Surviving Corporation (or the Surviving Company) and its Subsidiaries), or transfer any of its properties or assets to Parent or any of its Subsidiaries (including the Surviving Corporation (or the Surviving Company) and its Subsidiaries);
(iii) each contract that provides for the acquisition, disposition, license, use, distribution or outsourcing of assets, services, rights or properties (other than Oil and Gas Properties) with respect to which the Company reasonably expects that the Company and its Subsidiaries will make annual payments in excess of $2,000,000 or aggregate payments in excess of $8,000,000;
(iv) each contract that creates, evidences, secures, guarantees or otherwise relates to (A) Indebtedness for borrowed money in any amount in excess of $2,000,000 or (B) other Indebtedness of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $2,000,000, other than agreements solely between or among the Company and its Subsidiaries;
(v) each contract for lease of personal property or real property (excluding Oil and Gas Leases) involving annual payments in excess of $2,000,000 or aggregate payments in excess of $8,000,000 that are not terminable without penalty or other liability to the Company (other than any ongoing obligation pursuant to such contract that is not caused by any such termination) within 60 days, other than contracts related to drilling rigs;
(vi) each contract containing any area of mutual interest, joint bidding area, joint acquisition area, or non-compete or similar type of provision that, following the Effective Time, by virtue of Parent becoming an Affiliate of the Company as a result of the Transactions, would by its terms (A) materially restrict the ability of Parent or any of its Subsidiaries (including the Company and its Subsidiaries following the Closing) to (x) compete in any line of business or geographic area or with any Person during any period of time after the Effective TimeTime or (y) may engage make, sell or the manner distribute any products or locations in which services, or use, transfer or distribute, or enforce any of them may so engage in their rights with respect to, any business (including through “non-competition” of their material assets or “exclusivity” provisions), properties or (B) would could require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, Subsidiaries (including the Company and its SubsidiariesSubsidiaries following the Effective Time);
(ivvii) each contract involving the pending acquisition or sale of (Aor option to purchase or sell) is an indenture, loan any material amount of the assets or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money properties of the Company or its Subsidiaries, taken as a whole, other than contracts involving the acquisition or sale of (or option to purchase or sell) Hydrocarbons in the ordinary course of business;
(viii) each contract for any Subsidiary Derivative Transaction (including, for the avoidance of doubt, a listing of each confirmation number with respect thereto);
(ix) each partnership, joint venture or limited liability company agreement, other than any customary joint operating agreements, unit agreements or participation agreements affecting the Company Oil and Gas Properties;
(x) each joint development agreement, exploration agreement, participation, farmout, farmin or program agreement or similar contract requiring the Company or any of its Subsidiaries to make annual expenditures in excess of $100 million 2,000,000 or aggregate payments in excess of $8,000,000 during the twelve (B12)-month period following the date of this Agreement, other than customary joint operating agreements and continuous development obligations under Oil and Gas Leases;
(xi) is a guarantee any contract that (A) provides for the sale by the Company or any of its Subsidiaries of such indebtedness Hydrocarbons (1) in excess of any person other 5,000 barrels of oil equivalent of Hydrocarbons per day over a period of one month (calculated on a yearly average basis) or (2) for a term greater than 10 years and (B) has a remaining term of greater than 60 days and does not allow the Company or a wholly-owned such Subsidiary of to terminate it without penalty to the Company in excess of $100 millionor such Subsidiary within 60 days;
(vxii) grants each agreement that contains any “most favored nation” or most favored customer provision, call or put option, preferential right or rights of first or last offer, negotiation or refusal, in each case other than those contained in (A) rights any agreement in which such provision is solely for the benefit of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries, (B) customary royalty pricing provisions in Oil and Gas Leases, or (C) customary preferential rights in joint operating agreements, unit agreements or participation agreements affecting the business or the Company Oil and Gas Properties, to which the Company or any of its Subsidiaries or any of their respective Affiliates is subject, and, in each case, is material to the business of the Company and its Subsidiaries, taken as a whole;
(viixiii) limits any contract or restricts agreement that would be required to be disclosed in a Company SEC Document between the ability Company or any of its Subsidiaries, on the one hand, and (x) any of their respective current or former officers or directors, (y) any beneficial owner of five percent (5%) or more of the outstanding shares of Company Common Stock or (z) any Affiliate, “associate” or member of the “immediate family” (as such terms are respectively defined in Rules 12b-2 and 16a-1 of the Exchange Act) of any of the Persons described in the foregoing clauses (x) or (y), on the other hand;
(xiv) any contract that creates future payment obligations (including settlement agreements) of the Company or any of its Subsidiaries to declare or pay dividends or make distributions outside the ordinary course of business, in respect of their capital stockeach case, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest involving annual payments in excess of $100 million2,500,000 or aggregate payments in excess of $10,000,000, other than with respect to or creates or would create an Encumbrance on any wholly-owned Subsidiary material asset or property of the Company or wholly-owned Subsidiary of the MLPits Subsidiaries (other than Permitted Encumbrances);
(ixxv) relates to the acquisition or disposition of any business or assets contract (other than the purchase Oil and sale of crude oil and products in the ordinary course of business consistent with past practiceGas Leases) pursuant to which the Company or any of its Subsidiaries has paid amounts associated with any liability Production Burden in excess of $100 million 2,500,000 during the immediately preceding fiscal year or with respect to which the Company reasonably expects that it will make payments associated with any Production Burden in any transaction of the next three succeeding fiscal years that could, based on current projections, exceed $2,500,000 annually or series of related transactions;$10,000,000 in the aggregate; and
(xxvi) any acquisition contract that contains “earn out” or other contingent payment obligations, or remaining indemnity or similar obligations (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) other than asset retirement obligations, plugging and abandonment obligations and other reserves of the Company Disclosure Schedulesset forth in the Company Reserve Report), that would reasonably be expected to result in annual payments in excess of $2,500,000 or aggregate payments in excess of $10,000,000 after the date hereof.
(b) Each such Contract described Collectively, the contracts set forth in clauses Section 4.19(a) (iincluding all amendments, amendments and restatements, modifications or supplements thereto (whether or not material)) through (x) above is are herein referred to herein as the “Company Contracts.” A true and complete copy of each Company Contract has been made available to Parent. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a “Company Material Contract”. Each Material Adverse Effect, each Company Contract is a valid legal, valid, binding and legally binding obligation of enforceable in accordance with its terms on the Company and each of its Subsidiaries as applicable that is a party thereto and, to the knowledge of the Company, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiaryeffect, in each casesubject, subject as to enforceability, to Creditors’ Rights, except . Except as has not had and would notnot reasonably be expected to have, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder 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 its Subsidiaries, noror, to the knowledge of the Company, any other party thereto. There are no disputes pending or threatened in writing (or, to a Material the knowledge of the Company, threatened orally) with respect to any Company Contract is in breach or violation and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any provision ofother party to any Company Contract to terminate for default, convenience or in default under, otherwise any Material Company Contract, and no event nor to the knowledge of the Company, is any such party threatening to do so, in each case except as has occurred that, with not had or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would notnot reasonably be expected to have, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parent.
Appears in 2 contracts
Sources: Merger Agreement (Resolute Energy Corp), Merger Agreement (Cimarex Energy Co)
Material Contracts. (a) Except for this Agreement, as As of the date hereof, neither the Company nor there are no Contracts to which it or any of its Subsidiaries is a party to or bound by any agreement(other than Reinsurance Contracts, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) that:
Real Property Leases and Benefit Plans): (i) would be that are required to be described in, or filed as an exhibit to, any of its SEC Reports that are not so described or filed as required by the Company as a “material contract” (as such term is defined in item 601(b)(10) of Regulation S-K of Securities Act or the SEC);
Exchange Act; (ii) includes that contain any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with provisions restricting the acquisition or disposition by the Company or any ability of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Company;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent it or any of its Subsidiaries, including or which, following the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money consummation of the Company or any Subsidiary Merger, would restrict the ability of the Company in excess of $100 million or (B) is a guarantee by the Company PRE or any of its Subsidiaries or any of such their successors, including the Surviving Company and its Subsidiaries, to compete or transact in any business or with any Person or in any geographic area or grants a right of exclusivity to any Person; (iii) pursuant to which any indebtedness of it or any person other than the Company of its Subsidiaries is outstanding or a wholly-owned Subsidiary of the Company may be incurred in excess of $100 million;
(v) grants (A) rights 50 million or pursuant to which it or any of first refusal, rights its Subsidiaries guarantees any indebtedness of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person other Person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company it or any of its Subsidiaries;
) (viiexcept for trade payables arising in the ordinary course of business); (iv) limits or restricts the ability of the Company or involving any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement arrangement with any other Person (other than it or arrangement any of its Subsidiaries), relating to the formation, creation, operation, management or control of any partnership, limited liability company such partnership or joint venture in which the Company owns, directly venture; (v) that involves or indirectly, any voting could reasonably be expected to involve aggregate payments or economic interest of 15% receipts by or more and has invested or is contractually required to invest it and/or its Subsidiaries in excess of $100 million5 million in any twelve-month period, other than: (A) Contracts that can be terminated by it or any of its Subsidiaries on less than with respect to 90 days’ notice without payment by it or any wholly-owned Subsidiary of the Company its Subsidiaries of any penalty, or wholly-owned Subsidiary (B) Assumed Reinsurance Contracts; (vi) that have been entered into since January 1, 2012 or otherwise provide for material ongoing obligations of the MLP;
(ix) relates to it or any of its Subsidiaries and involve the acquisition from another Person or disposition to another Person of any capital stock or other equity interests of another Person or of a business (excluding, for the avoidance of doubt, acquisitions or dispositions of Investment Assets, and immaterial tangible assets (other than the purchase and sale of crude oil and products in the ordinary course of business); (vii) that outsources any material function or part of its business consistent with past practiceor that of any Subsidiary or Subsidiaries; (viii) pursuant to which that prohibits or restricts the Company payment of dividends or distributions in respect of its shares or capital stock or those of any of its Subsidiaries, prohibits the pledging of the shares or capital stock of it or any of its Subsidiaries has or prohibits or restricts the issuance of any liability in excess guarantee by it or any of $100 million in any transaction its Subsidiaries; (ix) that restricts its ability to incur indebtedness or series guarantee the indebtedness of related transactions;
others; (x) in its case (Aand not in the case of any of its Subsidiaries) is a material joint operating that are guarantees, including of obligations, suretyship contracts, performance bonds or other form of guaranty agreement (JOA) or (B) defines capital maintenance agreements or any material area of mutual interest (AMI)keep w▇▇▇▇; or
or (xi) is Contracts or agreements that contain a Contract put, call or similar right pursuant to which it or any of its Subsidiaries could be required to be set forth on Section 3.21(a)(xi) purchase or sell, as applicable, any equity interests of the Company Disclosure Schedules.
any Person or assets that have a fair market value or purchase price of more than $50 million (b) Each each such Contract described in clauses (i) through (x) above is referred to herein as (i)-(xi), other than any Reinsurance Contract, Real Property Lease or Benefit Plan, a “Material Contract”. ).
(i) Each Material Contract is a legal, valid and legally binding obligation agreement of the Company it and its Subsidiaries as applicable to the extent such Person is a party thereto and, to the knowledge of the Companyits Knowledge, each other party thereto, thereto is in compliance in all material respects with its terms and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rightseffect, except as would notwhere the failure to be valid, individually binding or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, full force and neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that effect would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy , (ii) it and each of its Subsidiaries and, to its Knowledge, each other party thereto, has performed all obligations required to be performed by such Person under such Material Contract, except where such noncompliance would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (iii) neither it nor any of its Subsidiaries 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 it or any of its Subsidiaries under any Material Contract, except where such default would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and (iv) there are no events or conditions which constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(c) Section 3.17(c) of the PRE Disclosure Letter contains a true and correct list, as of the date of this Agreement, of each Material Contract has previously been delivered to Parententered into by it or any of its Subsidiaries.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Exor S.p.A.), Merger Agreement (Partnerre LTD)
Material Contracts. (a) Except Schedule 3.14 sets forth a true, correct and complete list of all existing or pending contracts, commitments, licenses, agreements, obligations or arrangements, whether oral or written, formal or informal, to which any Company Party or any of its Subsidiaries is a party (or intend to become a party) or to which any of its assets or properties is bound (or may become bound):
(i) under which any Company Party or any of its Subsidiaries is indemnified for this Agreementor against any liability in excess of $250,000 or under which any Company Party or any of its Subsidiaries is or could be obligated to indemnify any Person in excess of $100,000;
(ii) under which any Company Party or any of its Subsidiaries leases personal property from or to third parties;
(iii) for the purchase or sale of products or other personal property or for the furnishing or receipt of services by any Company Party or any of its Subsidiaries (A) which calls for performance over a period of more than one (1) year and involves payments of more than $100,000 in the aggregate or (B) in which any Company Party or any of its Subsidiaries has agreed to purchase a minimum quantity of goods or services in excess of $200,000 in value or has agreed to purchase goods or services exclusively from any Person (provided, however, that it is agreed that the Company shall not be required to list on Schedule 3.14 any poultry purchase contracts entered into in the ordinary course of business, provided that such contracts will be deemed to be Material Contracts);
(iv) (A) granting representation, marketing or distribution rights, other than food brokers’ agreements entered into in the ordinary course of business, or (B) relating to Intellectual Property;
(v) regarding the financing of its business or any part of its business or operations;
(vi) establishing any partnership, any joint venture or any strategic alliance;
(vii) under which any Company Party or any of its Subsidiaries has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) Indebtedness (including Capital Lease Obligations);
(viii) concerning any confidentiality obligations entered into outside of the ordinary course of business or any covenants or agreements restricting it from carrying on any business or from competing in any line of business or with any Person;
(ix) with officers, directors, employees, consultants or independent contractors of any Company Party or any of its Subsidiaries;
(x) resulting in the creation or incurrence of any Lien (including any precautionary lease filings);
(xi) involving any Affiliates of any Company Party or any of its Subsidiaries;
(xii) under which the consequences of a default or termination could have a Material Adverse Effect on any Company Party or any of its Subsidiaries, whether individually or in the aggregate;
(xiii) under which any Company Party or any of its Subsidiaries will (A) receive aggregate payments from customers, (B) make aggregate payments to vendors or other suppliers or (C) make or receive aggregate payments to or from any other Persons, in each case in excess of $500,000 per annum;
(xiv) any collective bargaining agreement entered into by, or binding upon, the Company or any of its Affiliates; and
(xv) not entered into in the ordinary course of business and described in response to any of the foregoing clauses. All of the types of contracts, commitments, licenses, agreements, obligations or arrangements described in clauses (i) through (xv) above, together with the real property leases and other interests described in Section 3.25, whether entered into prior to, on or after the Effective Date, are collectively referred to herein as the “Material Contracts.” At the request of the Purchaser, the Company shall deliver to the Purchaser a true, correct and complete copy of each of the written Material Contracts, and a written summary of each of the oral Material Contracts, including all amendments, supplements or other modifications thereto.
(b) Each Material Contract existing as of the date hereofhereof is (i) a legal, neither valid and binding obligation of the Company nor Party or any Subsidiary that is a party thereto, enforceable against it in accordance with its terms (assuming the enforceability of such Material Contract against the other parties thereto), (ii) to the best knowledge of the Company Parties, a legal, valid and binding obligation of the other parties thereto, enforceable against such other parties in accordance with its terms (assuming the enforceability of such Material Contract against any Company Party or any of its Subsidiaries party thereto) and (iii) in full force and effect on the date hereof. Any Company Party or any of its Subsidiaries, on the one hand, and, to the best knowledge of the Company Parties, all other parties to the existing Material Contracts, on the other hand, are in substantial compliance with the terms thereof, and no default or event of default by any Company Party or any of its Subsidiaries, as the case may be, or, to the best knowledge of the Company Parties, any other party thereto exists thereunder.
(c) No Company Party or any of its Subsidiaries is a party to or bound by any agreementcontract, lease, easementcommitment, license, contractagreement, note, mortgage, indenture obligation or other legally binding obligation (“Contract”) that:
(i) would be required to be filed by the Company as a “material contract” (as such term is defined in item 601(b)(10) of Regulation S-K of the SEC);
(ii) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by the Company arrangement that restricts it from carrying on its business or any of its Subsidiaries of any business which payment obligations are part thereof, or would reasonably be expected to be material to the Company;
(iii) (A) limits from competing in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company or any of its Subsidiaries has any liability in excess of $100 million in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) of the Company Disclosure SchedulesPerson.
(b) Each such Contract described in clauses (i) through (x) above is referred to herein as a “Material Contract”. Each Material Contract is a valid and legally binding obligation of the Company and its Subsidiaries as applicable and, to the knowledge of the Company, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parent.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Levine Leichtman Capital Partners Ii Lp), Securities Purchase Agreement (Overhill Farms Inc)
Material Contracts. (a) Except for this Agreementas set forth in Section 3.9(a) of the Company Disclosure Letter, as of the date hereofof this Agreement, neither of the Company nor any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”and none of their respective assets are bound by) that:
any: (i) Contract (other than this Agreement) that would be required to be filed by the Company as a “material contract” (as such term is defined in item contract pursuant to Item 601(b)(10) of Regulation S-K of the SEC);
; (ii) includes any continuing indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other contingent payment obligations evidence of indebtedness for borrowed money or Contract providing for or guaranteeing indebtedness for borrowed money in excess of $15,000,000; (including iii) Contract (other than this Agreement) for the sale of any “earn-out” of its assets after the date hereof (other than sales of inventory in the ordinary course of business); (iv) Contract that contains a put, call, right of first refusal, right of first negotiation, right of first offer, redemption, repurchase or indemnification obligationssimilar right pursuant to which the Company or any of its Subsidiaries would be required to purchase or sell, as applicable, any equity interests, businesses, lines of business, divisions, joint ventures, partnerships or other assets of any Person; (v) arising in connection settlement agreement or similar Contract with a Governmental Entity or Order to which the acquisition Company or disposition any of its Subsidiaries is a party involving future performance by the Company or any of its Subsidiaries of in any business such case, which payment obligations are is material to the Company or would reasonably be expected to be material to the Company;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its ’s Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is taken as a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
whole; (vi) was entered into Contract providing for indemnification (including any obligations to settle any material litigation and which imposes material ongoing obligations on advance funds for expenses) of the current or former directors or officers of the Company or any of its Subsidiaries;
; (vii) limits to the Knowledge of the Company, any collective bargaining agreement, or restricts any other Contract (including any union “work rule” or “practice”) with any labor union, labor organization or works council; (viii) any Contract for capital expenditures or the ability acquisition or construction of fixed assets which requires aggregate future payments in excess of $20,000,000; (ix) any Contract containing covenants of the Company or any of its Subsidiaries to declare indemnify or pay dividends hold harmless another Person, unless such indemnification or make distributions hold harmless obligation to such Person contained in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is such Contract would not reasonably be expected to exceed a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess maximum of $100 million, other than with respect 25,000,000; (x) any Contract that limits or purports to any wholly-owned Subsidiary limit the ability of the Company or wholly-owned any Subsidiary or Affiliate of the MLP;
Company (ixincluding, following the Merger, Parent or any of its Affiliates) relates to compete in or conduct any line of business or compete with any Person or in any geographic area or during any period of time; (xi) to the acquisition Knowledge of the Company, any license, royalty Contract or disposition of any business or assets other Contract with respect to Intellectual Property Rights (other than generally commercially available, “off-the-shelf” software programs) which license, royalty Contract or other Contract, or which Intellectual Property, is material to the purchase Company and sale of crude oil and products in the ordinary course of business consistent with past practiceits Subsidiaries, taken as a whole; (xii) (A) any Contract pursuant to which the Company or any of its Subsidiaries has entered into a partnership or joint venture with any liability other Person, or (B) any collaboration, participation, off-set or similar Contract which, in the case of this clause (B), is material to the Company and its Subsidiaries, taken as a whole; (xiii) to the Knowledge of the Company, any Contract that (A) grants to any third Person any material exclusive license or supply or distribution agreement or other similar material exclusive rights, (B) grants to any third Person any guaranteed availability of supply or services for a period greater than 12 months, and, in each case, requires aggregate payments to the Company or any of its Subsidiaries in excess of $100 million 25,000,000 per annum, (C) grants to any third Person any “most favored nation” rights and requires aggregate payments to the Company or any of its Subsidiaries in any transaction or series excess of related transactions;
(x) (A) is a material joint operating agreement (JOA) $25,000,000 per annum or (BD) defines grants to any third Person price guarantees for a period greater than 12 months and requires aggregate payments to the Company or any of its Subsidiaries in excess of $25,000,000 per annum; (xiv) any Contract, other than a Company Plan, which requires payments by or to the Company or any of its Subsidiaries in excess of $5,000,000 per annum containing “change of control” or similar provisions; (xv) to the Knowledge of the Company, any material area sole source supply Contracts; (xvi) any other Contract (other than this Agreement, purchase orders for the purchase of mutual interest (AMI); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) inventory in the ordinary course of business consistent with past practice or Contracts between the Company and any of its wholly owned Subsidiaries or between any of the Company’s wholly owned Subsidiaries) under which the Company Disclosure Schedules.
and its Subsidiaries are obligated to make or receive payments in the future in excess of $50,000,000 per annum or $500,000,000 during the life of the Contract; or (bxvii) any Contract the termination or breach of which, or the failure to obtain consent in connection with the Transactions in respect of which, would have or reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Each such Contract described in clauses (ii)-(xvii) through (x) above is referred to herein as a “Material Contract.”. Each Material Contract is a valid
(b) Except as has not had and legally binding obligation of the Company and its Subsidiaries as applicable and, would not reasonably be expected to the knowledge of the Company, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would nothave, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and (i) neither the Company nor any of its Subsidiaries, norSubsidiaries is (and, to the knowledge Knowledge of the Company, any no other party to a is) in default under any Material Contract Contract, (ii) each of the Material Contracts is in breach full force and effect, and is the valid, binding and enforceable obligation of the Company and its Subsidiaries, and to the Knowledge of the Company, of the other parties thereto, except that such enforcement may be subject to applicable bankruptcy, reorganization, insolvency, moratorium or violation other similar Laws affecting creditors’ rights generally and general principles of any provision ofequitable relief, (iii) the Company and its Subsidiaries have performed all respective obligations required to be performed by them to date under the Material Contracts and are not (with or without the lapse of time or the giving of notice, or both) in default underbreach thereunder and (iv) neither the Company nor any of its Subsidiaries has received any notice of termination or breach with respect to, and, to the Knowledge of the Company, no party has threatened to terminate, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parent.
Appears in 2 contracts
Sources: Merger Agreement (United Technologies Corp /De/), Merger Agreement (Goodrich Corp)
Material Contracts. (a) Except for as disclosed in the Specified Parent SEC Documents, to the extent that it is reasonably apparent that the disclosure in the Specified Parent SEC Documents is responsive to the matters set forth in this AgreementSection 4.12(a), as of the date hereofof this Agreement, neither the Company Parent nor any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, notearrangement, mortgagecommitment or understanding (whether written or oral), indenture other than hedging or other legally binding obligation (“Contract”) that:
similar arrangements in the ordinary course of business consistent with past practice, (i) would be required to be filed by the Company as which is a “material contract” contract (as such term is defined in item Item 601(b)(10) of Regulation S-K of the SEC);
) to be performed after the date of this Agreement, (ii) includes any continuing which materially restrains, limits or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by the Company impedes Parent’s or any of its Subsidiaries of Subsidiaries’ ability to compete with or conduct any business which payment obligations are or would reasonably be expected to be material to the Company;
any line of business (iii) including (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent geographic limitations on Parent’s or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions)Subsidiaries’ activities, (B) would require the disposition any confidentiality agreement, area of mutual interest or standstill agreement with any material assets third party (or line agent thereof) that contains any exclusivity or standstill provisions that are or will be binding on Parent, any of business of the Company or its Subsidiaries or, after the Effective Time, the Surviving Corporation); provided that Parent need not disclose in the Parent Disclosure Letter information related to those agreements which would otherwise be covered by this clause (ii) to the extent such agreements prohibit the Company from disclosing the existence or any terms of such agreements to third parties, except that if any such agreements contain any material restrictions, limits or impediments on the Parent’s or its Subsidiaries Subsidiaries’ ability to compete with or conduct any business or any line of business, such restrictions, limits and impediments shall be disclosed without providing the identity of the parties to the agreements on Parent’s Disclosure Letter, (Ciii) grants “most favored nation” status with respect which is a material take-or-pay agreement or other similar agreement that entitles purchasers of production to any material obligations thatreceive delivery of Hydrocarbons without paying therefor, after (iv) which contains a put, call or other right of acquisition or disposition pursuant to which the Effective Time, would apply to Parent or any of its SubsidiariesSubsidiaries could be required to purchase or sell, as applicable, any equity interests (including the Company and its Subsidiaries;
(ivlicensing or leasehold interests) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other Person or assets that have a market value or purchase price of more than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal5,000,000, rights of first negotiation or similar pre-emptive rightsor, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset calls on production, that is material to obligate the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company Parent or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stocksell Hydrocarbons at a price which is less than market value, partner interests, membership interests or other equity interests;
(viiiv) which is a material partnership, limited liability company, partnership or joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company partnership or joint venture material to the Parent and its Subsidiaries, taken as a whole, in which the Company ownsParent, directly or indirectly, any owns more than 10% voting or economic interest, or any interest of 15% valued at more than $10,000,000 without regard to percentage voting or more economic interest, or (vi) which is otherwise material to Parent and has invested its Subsidiaries taken as a whole. Each contract, arrangement, commitment or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary understanding of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company or any of its Subsidiaries has any liability in excess of $100 million in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedules.
(b) Each such Contract type described in clauses (ithis Section 4.12(a)(i) through (x) above iv), whether or not disclosed in the Specified Parent SEC Documents, is referred to herein as a “Parent Material 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 or disclosed in the Specified Parent SEC Documents, is a Parent Material Contract). Parent has previously made available to the Company true, complete and correct copies of each Parent Material Contract other than those which Parent is entitled to omit from the Parent Disclosure Letter pursuant to the proviso to clause (ii) of the first sentence of this Section 4.12(a).
(b) (i) Each Parent Material Contract is a valid and legally binding obligation of the Company and its Subsidiaries as applicable and, to the knowledge of the Company, each other party thereto, and is in full force and effect effect, (ii) Parent and enforceable each of its Subsidiaries has performed in all respects all obligations required to be performed by it to date under each Parent Material Contract, (iii) no event or condition exists which constitutes or, after notice or lapse of time or both, would constitute, a default on the Company part of Parent or any of its Subsidiaries under any such Parent Material Contract and (iv) to the applicable SubsidiaryKnowledge of Parent, no other party to such Parent Material Contract is in default in any respect thereunder, except in each casecase for any invalidity, subject to Creditors’ Rightsnonperformance, except as would notevent, condition or default that, individually or in the aggregate, has not had and would not be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Effect on Parent.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (KCS Energy Inc), Agreement and Plan of Merger (Petrohawk Energy Corp)
Material Contracts. (a) Except for this Agreement, the Company Benefit Plans and agreements filed as exhibits to the Company SEC Documents, as of the date hereofof this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) thatby:
(i) would be required to be filed by the Company as a any “material contract” (as such term is defined in item Item 601(b)(10) of Regulation S-K of the SEC);
(ii) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Company;
(iii) Contract that (A) limits in expressly imposes any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations restriction on the Company right or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare compete with any other person or pay dividends acquire or make distributions dispose of the securities of another person or (B) contains an exclusivity or “most favored nation” clause that restricts the business of the Company or any of its Subsidiaries in respect of their capital stock, partner interests, membership interests or other equity interestsa material manner;
(viiiiii) is a material partnershipany mortgage, note, debenture, indenture, security agreement, guaranty, pledge or other agreement or instrument evidencing indebtedness for borrowed money or any guarantee of such indebtedness of the Company or any of its Subsidiaries in an amount in excess of $10 million;
(iv) any joint venture, partnership or limited liability company, joint venture company agreement or other similar agreement or arrangement Contract relating to the formation, creation, operation, management or control of any partnershipjoint venture, partnership or limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 millioncompany, other than with respect to any wholly-owned Subsidiary of such Contract solely between the Company and its Subsidiaries or wholly-owned Subsidiary of among the MLPCompany’s Subsidiaries;
(ixv) relates to any Contract expressly limiting or restricting the acquisition or disposition ability of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company or any of its Subsidiaries has to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the case may be;
(vi) any liability acquisition Contract that contains “earn out” or other contingent payment obligations, or remaining indemnity or similar obligations, that could reasonably be expected to result in payments after the date hereof by the Company or any of its Subsidiaries in excess of $100 million in any transaction or series of related transactions;20 million; and
(xvii) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required lease or sublease with respect to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedules.
(b) Each such Contract described in clauses (i) through (x) above is referred to herein as a “Material Contract”. Each Material Contract is a valid and legally binding obligation of the Company and its Subsidiaries as applicable and, to the knowledge of the Company, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to ParentLeased Real Property.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Energy Transfer Partners, L.P.)
Material Contracts. (a) Except for this Agreement, for Contracts filed as exhibits to the Company Reports or as disclosed in Section 3.15(a) of the Company Disclosure Schedule, as of the date hereof, of this Agreement (i) neither the Company nor any of its Subsidiaries is a party to to, and (ii) none of the Company, any of its Subsidiaries, or any of their respective properties, assets or rights is bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) thatby:
(i) any Contract that is or would be required to be filed by the Company as a “material contract” (as such term is defined in item with the SEC pursuant to Item 601(b)(10) of Regulation S-K of or disclosed by the SEC)Company on Form 8-K;
(ii) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Company;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability companycompany agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company partnership or joint venture in which (excluding any Teaming Agreement) that is material to the business of the Company ownsand its Subsidiaries, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 milliontaken as a whole, other than with respect to any wholly-owned such limited liability company, partnership or joint venture that is a Subsidiary of the Company;
(iii) any Contract (other than among consolidated Subsidiaries of the Company or wholly-owned Subsidiary of the MLPcapital or operating leases) relating to (x) indebtedness for borrowed money or (y) any interest rate, currency or commodity derivatives or hedging transactions;
(ixiv) relates to the acquisition or disposition of any business or assets Contract (other than any Teaming Agreement) that purports to limit the purchase and sale right of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company or any of its Subsidiaries has any liability in excess of $100 million to engage or compete in any transaction line of business or series of related transactions;
(x) (A) is a to compete with any Person or operate in any location, in each case in any respect material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedules.
(b) Each such Contract described in clauses (i) through (x) above is referred to herein as a “Material Contract”. Each Material Contract is a valid and legally binding obligation business of the Company and its Subsidiaries Subsidiaries, taken as applicable anda whole;
(v) any Contract entered into since the Applicable Date relating to an acquisition, to the knowledge divestiture, merger or similar transaction that contains representations, covenants, indemnities or other obligations (including payment, indemnification, purchase price adjustment, “earn-out” or other contingent obligations) of the Company, each other party thereto, and is Company or any of its Subsidiaries that are still in full force and effect and enforceable would reasonably be expected to result in payments by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its SubsidiariesSubsidiaries in excess of $250,000;
(vi) any Contract that obligates the Company to make any capital commitment or expenditure (including pursuant to any joint venture) in excess of $1,000,000;
(vii) any individual Contract with an employee of the Company or any of its Subsidiaries that provides for compensation in any fiscal year that is equal to or greater than $400,000 (excluding any compensation related to expatriate costs and expenses, norsuch as expatriate allowance, to expatriate bonus, assignment completion bonus, post differential/hardship pay, post or cost of living allowance, education allowance, housing or living quarters allowance, relocation expenses, repatriation allowance, automobile allowance, language courses and orientation, travel costs, cost for tax assistance and preparation, and temporary housing costs), other than any offer letter or similar employment arrangement that can be terminated without express liability post-termination other than severance paid in the knowledge ordinary course of business; and
(viii) any Contract that prohibits the pledging of capital stock of the Company or any Subsidiary of the Company or prohibits the issuance of guarantees by any Subsidiary of the Company, any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parent.
Appears in 2 contracts
Sources: Merger Agreement (Providence Equity Partners VI L P), Merger Agreement (Sra International Inc)
Material Contracts. (a) Except for this Agreementas set forth on Schedule 3.13 of the Company Disclosure Letter, as of the date hereof, hereof neither the Company nor any of its Subsidiaries subsidiaries is a party to or bound by any lease, agreement, lease, easement, license, contract, note, mortgage, indenture or other contract or legally binding contractual right or obligation of a type described below (“Contract”) that:collectively, "Company Material Contracts"):
(i) any written employment agreement with any employee of the Company or any of its subsidiaries providing for annual base compensation in excess of $100,000 per year;
(ii) any collective bargaining agreement with any labor union covering the employees of the Company or any of its subsidiaries;
(iii) any contract that would be required to be filed by the Company or any of its subsidiaries with the Securities and Exchange Commission (the "SEC") as a “material contract” (as such term is defined in item 601(b)(10) of Regulation Sexhibits to an Annual Report on Form 10-K of the SEC);
(ii) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by if the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to subsidiaries had securities registered under the Company;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries1934 Act;
(iv) (A) is an indenture, loan any agreement for capital expenditures or credit Contract, loan note, mortgage Contract the acquisition or other Contract representing, or any guarantee of, indebtedness for borrowed money construction of fixed assets that requires aggregate future payments outside the Company or any Subsidiary ordinary course of the Company business in excess of $100 million 2,000,000, excluding expenditures for inventory and raw materials relating to the fabrication or sale of equipment and parts in the ordinary course of business;
(Bv) is a guarantee by any indenture, mortgage, loan, credit, sale-leaseback, guarantee, or other agreement under which the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company subsidiaries has borrowed money in excess of $100 million;
2,500,000 or issued, or otherwise become obligated in connection with, any note, bond, indenture, security interest, or other evidence of indebtedness for borrowed money, sold and leased back assets, or guaranteed indebtedness for money in excess of $2,500,000 borrowed by others (v) grants (A) rights of first refusalexcluding hedge, rights of first negotiation swap, exchange, or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than agreements entered into in the Company, a wholly-owned Subsidiary ordinary course of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Companybusiness);
(vi) was entered into any agreement that constitutes a lease under which the Company or any of its subsidiaries is the lessor or lessee of real or personal property, that (A) cannot be terminated by the Company or a subsidiary, as the case may be, without penalty upon not more than 180 calendar day's notice and (B) involves an annual base rental in excess of $500,000, excluding leases under the Synthetic Leases and leases of compressors and related equipment to settle customers in the ordinary course of business; or
(vii) any material litigation and which other agreement not referenced in subsections (i) through (vi) of this Section 3.13(a) that creates or imposes material ongoing non-competition obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company or any of its Subsidiaries has any liability in excess of $100 million in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedulessubsidiaries.
(b) Each such Contract described in clauses (i) through (x) above is referred to herein Except as a “Material Contract”. Each set forth on Schedule 3.13 of the Company Disclosure Letter, each Company Material Contract listed on Schedule 3.13 of the Company Disclosure Letter is a valid and legally binding obligation of the Company and its Subsidiaries or a subsidiary, as applicable andthe case may be, to the knowledge of the Company, each other party thereto, and is in full force and effect and enforceable by against the Company or the applicable Subsidiarysubsidiary, as the case may be, in each caseaccordance with its terms, subject to Creditors’ Rights(i) applicable bankruptcy, except insolvency, reorganization, moratorium, and other similar laws of general application with respect to creditors, (ii) general principles of equity, and (iii) the power of a court to deny enforcement of remedies generally based upon public policy. Except as would notset forth on Schedule 3.13 of the Company Disclosure Letter, the Company and its subsidiaries have, performed all obligations required to be performed by them through the date hereof under the Company Material Contracts listed on Schedule 3.13 of the Company Disclosure Letter, other than any such obligations the failure of which to perform are not reasonably expected to have, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred that, are not (with or without notice, the lapse of time or the giving of notice, or both, would constitute such a breach, violation ) in breach or defaultdefault in any respect thereunder, except in any such case for breaches, violations such breaches or defaults that would notare not reasonably expected to have, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parent.
Appears in 2 contracts
Sources: Merger Agreement (Universal Compression Inc), Merger Agreement (Universal Compression Inc)
Material Contracts. (a) Except for this Agreementas otherwise set forth in Confidential Schedule 3.13, as none of the date hereof, neither the Company nor Legacy or any of its Subsidiaries is a party to to, or bound by or subject to any agreement, lease, easement, license, contract, notearrangement, mortgagecommitment or understanding (whether written or oral) which is in effect as of the date hereof (any such contract, indenture arrangement, commitment or other legally binding obligation (understanding in the following categories, a “Material Contract”):
(A) that:
(i) would be required to be filed by the Company as that is a “material contract” (as such term is defined in item within the meaning of Item 601(b)(10) of the SEC’s Regulation S-K of the SEC);
K; (ii) includes any continuing containing covenants binding upon Legacy or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with its Subsidiaries that restrict the acquisition or disposition by the Company ability of Legacy or any of its Subsidiaries (or which, following the consummation of the Merger, would materially restrict the ability of the Resulting Corporation or its Subsidiaries) to compete in any business or geographic area or which payment obligations are or grant “most favored nation” status that, following the Merger, would reasonably be expected to be material apply to the Company;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent Resulting Corporation or any of its Subsidiaries after the Effective TimeSubsidiaries; (iii) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would that could require the disposition of any material assets or line of business of the Company Legacy or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent Resulting Corporation or any of its Subsidiaries, including the Company and its Subsidiaries;
; or (iv) (A) is an indenture, loan that prohibits or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money limits the right of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company Legacy or any of its Subsidiaries to declare sell or pay dividends distribute any products or make distributions services in respect of their capital stock, partner interests, membership interests or other equity interestsany material respect;
(viiiB) (i) involving commitments to others to make capital expenditures or capital asset purchases or capital asset sales in excess of $250,000 per contract; or (ii) involving expenditures or commitments to purchase relating to information technology of an amount or value in excess of $250,000 over its remaining term;
(C) relating to any direct or indirect indebtedness for borrowed money of Legacy or any of its Subsidiaries (including loan agreements, lease purchase arrangements, guarantees, agreements to purchase goods or services or to supply funds or other undertakings on which others rely in extending credit, but excluding deposits received in the ordinary course of business), or any conditional sales contracts, chattel mortgages and other security arrangements with respect to personal property and any equipment lease agreements involving payments to or by Legacy or any of its Subsidiaries in excess of $250,000 over the remaining term;
(D) other than pursuant to Employee Plans, providing for payments to be made by Legacy or any of its Subsidiaries upon a change in control thereof;
(E) that may not be cancelled by Prosperity, Legacy or any of their respective Subsidiaries without payment of a penalty or termination fee equal to or greater than $250,000 (assuming such contract was terminated on the Closing Date);
(F) containing any standstill or similar agreement pursuant to which Legacy or its Subsidiaries has agreed not to acquire assets or securities of another person;
(G) that is entered into, or has been entered into in the two years prior to the date hereof, with: (i) any Affiliate of Legacy; (ii) any current or former director or executive officer or any Person beneficially owning five percent or more of the outstanding Legacy Shares; or (iii) any “associate” or member of the “immediate family” (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) of a material Person identified in clauses (i) or (ii) of this subsection;
(H) that contains a put, call or similar right pursuant to which Legacy or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any Person or any assets;
(I) which relates to a joint venture, partnership, limited liability company, joint venture company agreement or other similar agreement or arrangement relating arrangement, or to the formation, creation, creation or operation, management or control of any partnership, limited liability company partnership or joint venture in which the Company ownswith any third parties;
(J) that involves performance of services or delivery of goods or materials to, directly or indirectlyexpenditures by, Legacy or any voting of its Subsidiaries of an amount or economic interest of 15% or more and has invested or is contractually required to invest value in excess of $100 million250,000 over its remaining term, other than with respect to any whollyloans, funding arrangements, OREO-owned Subsidiary related arrangements and other transactions made in the ordinary course of the Company banking or wholly-owned Subsidiary of the MLPtrust business;
(ixK) relates relating to the acquisition or disposition of any business or operations (whether by merger, sale of stock, sale of assets or otherwise) in respect of which there are any remaining material obligations (other than contracts relating to the purchase and acquisition or sale of crude oil and products other real estate owned);
(L) granting to a Person any right, license, covenant not to ▇▇▇ or other right in the Proprietary Rights or grants to Legacy or any of its Subsidiaries a license or other right to any Proprietary Rights (including licenses to software, other than licenses to shrink-wrap or click-wrap software), in each case that involves the payment of more than $100,000 per annum or is material to the conduct of the business of Legacy or any of its Subsidiaries;
(M) relating to the lease of real property or for the lease of personal property providing for annual payments of $100,000 or more; or
(N) is otherwise not entered into in the ordinary course of business consistent with past practice) pursuant or that is material to which the Company Legacy or its Subsidiaries or its or their financial condition or results of operations. Each Material Contract is valid and binding on Legacy or one of its Subsidiaries, as applicable, and in full force and effect, and none of Legacy or any of its Subsidiaries has any liability in excess of $100 million in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedules.
(b) Each such Contract described in clauses (i) through (x) above is referred to herein as a “Material Contract”. Each Material Contract is a valid and legally binding obligation of the Company and its Subsidiaries as applicable and, to the knowledge Best Knowledge of the CompanyLegacy, each other party any counterparty thereto, and is in full force default under any Material Contract, and effect and enforceable by there has not occurred any event that, with the Company lapse of time or the applicable Subsidiarygiving of notice or both, in each case, subject to Creditors’ Rightswould constitute a default by Legacy or any of its Subsidiaries, except as would not, individually or in the aggregate, reasonably be reasonably likely to have result in a Company Material Adverse EffectChange in Legacy. True, correct and neither the Company complete copies of all Material Contracts have been made available to Prosperity. Neither Legacy nor any of its Subsidiaries, nor, to the knowledge Best Knowledge of the CompanyLegacy, has received notice of, any other party to a Material Contract is in breach or violation of any provision ofMaterial Contract by any of the other parties thereto which would reasonably be expected to result in, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, either individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to ParentChange in Legacy.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Prosperity Bancshares Inc), Agreement and Plan of Reorganization (LegacyTexas Financial Group, Inc.)
Material Contracts. (a) Except for this Agreement, as None of the date hereofSeller Entities, neither the Company nor any of its Subsidiaries their respective Assets, businesses, or operations, is a party to to, or is bound by or subject to, any agreementContract, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) that:
(i) would be required to be filed by the Company as that is a “material contract” (as such term is defined in item Item 601(b)(10) of Regulation S-K of the SEC);
; (ii) includes that is an employment, severance, termination, consulting, or retirement Contract, (iii) relating to the borrowing of money by any continuing Seller Entity or the guarantee by any Seller Entity of any such obligation (other contingent payment obligations (than Contracts evidencing deposit liabilities, purchases of federal funds, fully secured repurchase agreements, advances and loans from the Federal Home Loan Bank, and trade payables, in each case in the Ordinary Course) in excess of $10,000,000, including any “earn-out” sale and leaseback transactions, capitalized leases and other similar financing arrangements, (iv) which prohibits or indemnification obligations) arising in connection with materially restricts any Seller Entity (or, following consummation of the acquisition or disposition transactions contemplated by the Company this Agreement, Buyer or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Company;
(iiiSubsidiaries) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage from engaging in any business activities in any geographic area, line of business or otherwise in competition with any other Person; (including through “non-competition” v) relating to the purchase or “exclusivity” provisionssale of any goods or services by a Seller Entity (other than Contracts entered into in the Ordinary Course with a term not in excess of two years and involving payments under any individual Contract not in excess of $250,000 over its remaining term or involving Loans, borrowings or guarantees originated or purchased by any Seller Entity in the Ordinary Course), (Bvi) would require the disposition of that grants any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status right, right of first refusal, right of first offer or similar right (including any exclusivity obligations) with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representingAssets, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness rights of any person other than the Company or Seller Entity, taken as a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusalwhole, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) which limits or restricts the ability payment of the Company or dividends by any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
Seller Entity; (viii) is pursuant to which any Seller Entity has agreed with any third parties to become a material partnershipmember of, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management manage or control of any a joint venture, partnership, limited liability company or joint venture in which other similar entity; (ix) that provides for (A) the Company ownsdisposition of any portion of the assets or business of the Seller Entities, (B) the acquisition, directly or indirectly, of a portion of the assets or business of any voting other Person (whether by merger, sale of stock or economic interest assets or otherwise), or (C) related to any disposition or acquisition that contains continuing representations, covenants, indemnities or other obligations (including “earn out” or other contingent payment obligations); (x) between any Seller Entity, on the one hand, and (A) any officer or director of 15any Seller Entity, or (B) to the Knowledge of Seller, any (1) record or beneficial owner of 5% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company voting securities of Seller, (2) Affiliate or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition family member of any business such officer, director or assets record or beneficial owner, or (3) any other Affiliate of Seller, on the other hand, except those of a type available to employees of Seller generally; (xi) containing any standstill or similar agreement pursuant to which any Seller Entity has agreed not to acquire Assets or equity interests of another Person; (xii) that provides for indemnification by any Seller Entity of any Person, except for non-material Contracts entered into in the Ordinary Course; (xiii) with or to a labor union or guild (including any collective bargaining agreement); (xiv) that is a settlement, consent or similar Contract and contains any material continuing obligations of any Seller Entity; (xv) that is a consulting Contract or data processing, software programming or licensing Contract involving the payment of more than $250,000 per annum (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to any such contracts which the Company are terminable by Seller or any of its Subsidiaries has on thirty days or less notice without any liability in excess required payment or other conditions, other than the condition of $100 million in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMInotice); or
and (xixvi) any other Contract or amendment thereto that is a material to any Seller Entity or their respective business or Assets and not otherwise entered into in the Ordinary Course. Each Contract required to be of the type described in this Section 4.18(a), whether or not set forth on Section 3.21(a)(xi) of in Seller’s Disclosure Memorandum together with all Contracts referred to in Sections 4.12 and 4.17(a), are referred to herein as the Company Disclosure Schedules“Seller Contracts.“
(b) Each such Contract described in clauses With respect to each Seller Contract: (i) through (x) above is referred to herein as a “Material Contract”. Each Material the Seller Contract is a legal, valid and legally binding obligation of the Company and its Subsidiaries as applicable and, to the knowledge of the Company, each other party thereto, on a Seller Entity and is in full force and effect and is enforceable by the Company in accordance with its terms; (ii) no Seller Entity is in material Default thereunder; (iii) no Seller Entity has repudiated or the applicable Subsidiary, waived any material provision of any such Contract; (iv) no other party to any such Contract is in each case, subject to Creditors’ Rights, except as would not, individually material Default or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, has repudiated or waived any material provision thereunder; and neither the Company nor any of its Subsidiaries, nor(v) there is not pending or, to the knowledge Knowledge of Seller, threatened cancellations of any Seller Contract.
(c) Seller has made available to Buyer complete and correct copies of each Seller Contract in effect as of the Company, any other party to a Material Contract is in breach or violation date hereof. All of the indebtedness of any provision of, Seller Entity for money borrowed is pre-payable at any time by such Seller Entity without penalty or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parentpremium.
Appears in 2 contracts
Sources: Merger Agreement (Renasant Corp), Merger Agreement (First Bancshares Inc /MS/)
Material Contracts. (a) Except for this Agreement, the Company Benefit Plans and agreements filed as exhibits to the Company SEC Documents, as of the date hereofof this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) thatby:
(i) would be required to be filed by the Company as a any “material contract” (as such term is defined in item Item 601(b)(10) of Regulation S-K of the SEC);
(ii) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Company;
(iii) Contract that (A) limits in expressly imposes any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations restriction on the Company right or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare compete with any other person or pay dividends acquire or make distributions dispose of the securities of another person or (B) contains an exclusivity or “most favored nation” clause that restricts the business of the Company or any of its Subsidiaries in respect of their capital stock, partner interests, membership interests or other equity interestsa material manner;
(viiiiii) is any mortgage, note, debenture, indenture, security agreement, guaranty, pledge or other agreement or instrument evidencing indebtedness for borrowed money or any guarantee of such indebtedness of the Company or any of its Subsidiaries in an amount in excess of $25 million;
(iv) any Contract that provides for the acquisition, disposition, license, use, distribution or outsourcing of assets, services, rights or properties with a material partnershipvalue, or requiring the payment of an annual amount by the Company and its Subsidiaries, in excess of $50 million;
(v) any joint venture, partnership or limited liability company, joint venture company agreement or other similar agreement or arrangement Contract relating to the formation, creation, operation, management or control of any partnershipjoint venture, partnership or limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 millioncompany, other than with respect to any wholly-owned Subsidiary of such Contract solely between the Company and its Subsidiaries or wholly-owned Subsidiary of among the MLPCompany’s Subsidiaries;
(ixvi) relates to any Contract expressly limiting or restricting the acquisition or disposition ability of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company or any of its Subsidiaries has to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the case may be;
(vii) any liability acquisition Contract that contains “earn out” or other contingent payment obligations, or remaining indemnity or similar obligations, that could reasonably be expected to result in payments after the date hereof by the Company or any of its Subsidiaries in excess of $100 million in any transaction or series of related transactions;50 million; and
(xviii) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required lease or sublease with respect to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedules.
(b) Each such Contract described in clauses (i) through (x) above is referred to herein as a “Material Contract”. Each Material Contract is a valid and legally binding obligation of the Company and its Subsidiaries as applicable and, to the knowledge of the Company, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to ParentLeased Real Property.
Appears in 2 contracts
Sources: Merger Agreement (Energy Transfer Partners, L.P.), Merger Agreement (Sunoco Inc)
Material Contracts. (a) Except for (x) this AgreementAgreement and (y) any Employee Plans, Section 4.21 of the Company Disclosure Letter contains a complete and correct list, as of the date hereofof this Agreement, neither of each Contract described below in this Section 4.21 under which the Company nor or any of its Subsidiaries is a party to or and bound by any agreementby, leasein each case, easementas of the date of this Agreement (each, license, contract, note, mortgage, indenture or other legally binding obligation (a “Material Contract”) that:):
(i) would be required to be filed by the Company as a “material contract” (as such term is defined in item 601(b)(10) of Regulation S-K of the SEC);
(ii) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Company;
(iii) Contract that (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions)contains a provision that materially limits, (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits curtails or restricts the ability of the Company or any of its Subsidiaries to declare compete or pay dividends conduct activities in any geographic area or make distributions in respect line of their capital stockbusiness with any Person or (B) includes any “most favored nation”, partner interestsexclusive marketing, membership interests right of first refusal, first offer or first negotiation or other equity interestsmaterial exclusive rights of any type or scope, in each case, that is granted by the Company or any of its Subsidiaries to a Third Party (other than any such Contract which is terminable by the Company or any of its Subsidiaries on 30 days or less notice without any required material payment or other material conditions, other than the condition of notice);
(viiiii) is any Contract providing for indemnification of any officer, director or employee by the Company or its Subsidiaries with respect to service in such capacities, other than Contracts entered into on substantially the same form as the Company’s standard forms made available to Parent;
(iii) each acquisition, minority investment, divestiture or disposition Contract providing for the acquisition, divestiture, disposition of, or minority investment in, a business or material partnershipassets or exclusive licensing agreement that contains representations, limited liability companycovenants, joint venture indemnities or other similar agreement obligations (including “earnout” or arrangement relating other contingent payment obligations), that would reasonably be expected to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture result in which the Company owns, directly or indirectly, any voting of its Subsidiaries’ receipt or economic interest making of 15% or more and has invested or is contractually required to invest future payments in excess of $100 million1,000,000;
(iv) any Collective Bargaining Agreement;
(v) any Contract under which (A) the Company or any of its Subsidiaries is granted any material license, other than sublicense, right, consent, or subscription (including a covenant not to be sued) with respect to any whollyIntellectual Property of a Third Party (excluding (1) licenses for off-owned Subsidiary of the-shelf computer software or software-as-a-service that are generally available to the Company or wholly-owned Subsidiary any of its Subsidiaries on commercial terms for a total cost of less than $250,000, (2) licenses for Open Source Software, (3) Contracts where any license of any Intellectual Property is incidental to the purpose of such Contract, such as licenses to use feedback and suggestions and licenses authorizing the use of brand materials for marketing purposes, (4) Contracts with employees, contractors, and consultants entered into in the ordinary course of business, substantially in the form of the MLPCompany’s or any of its Subsidiaries’ forms of employee confidentiality and invention assignment agreement and contractor agreement, copies of which have been made available to Parent, and (5) nondisclosure agreements entered into in the ordinary course of business), or (B) any Third Party is granted any material license, sublicense, right, consent or subscription (including a covenant not to be sued) by the Company or any of its Subsidiaries with respect to any Company Owned IP (excluding (1) Contracts with customers entered into in the ordinary course of business, substantially in the form of the Company’s or any of its Subsidiaries’ form of customer agreement, copies of which have been made available to Parent, (2) non-exclusive licenses granted to service providers in the ordinary course of business for the sole purpose of providing services to the Company or any of its Subsidiaries, (3) Contracts where any license of any Intellectual Property is incidental to the purpose of such Contract, such as licenses to use feedback and suggestions and licenses authorizing the use of brand materials for marketing purposes, (4) Contracts with employees, contractors, and consultants entered into in the ordinary course of business, substantially in the form of the Company’s forms of employee confidentiality and invention assignment agreement and contractor agreement, copies of which have been made available to Parent, and (5) nondisclosure agreements entered into in the ordinary course of business);
(ixvi) relates any Contract providing for contributions of capital or any guaranty in an amount that is material to the acquisition or disposition Company and its Subsidiaries, taken as a whole (excluding (A) contributions made to the Company by its Subsidiaries and (B) any guaranty of any business or assets (other than the purchase and sale of crude oil and products performance entered into in the ordinary course of business consistent with past practice);
(vii) any Contract with any Governmental Authority that is material to the conduct of the business of the Company and its Subsidiaries, taken as a whole;
(viii) each Contract entered into in connection with the settlement or other resolution of any action or proceeding (A) under which the Company or any of its Subsidiaries have any continuing obligations, liabilities or restrictions that are material to the Company and its Subsidiaries, taken as a whole, or (B) that involved or would reasonably be expected to involve payment by the Company or any of its Subsidiaries of more than $1,000,000 on or after the Company Balance Sheet Date;
(ix) each Contract under which the Company or any of its Subsidiaries has, directly or indirectly, made any loan, capital contribution to, or other investment in, any Person (except for the Company or any of its Subsidiaries), other than investments in marketable securities in the ordinary course of business;
(x) each Contract not otherwise described in any other subsection of this Section 4.21(a) pursuant to which the Company or any of its Subsidiaries has is obligated to pay, or entitled to receive (for the benefit of the Company or any liability of its Subsidiaries), payments in excess of $100 million 2,500,000 in any transaction the 12-month period following the date of this Agreement, which cannot be terminated by the Company or series such Subsidiary of related transactionsthe Company on less than 30 days’ notice without material payment or other material conditions, other than the condition of notice;
(x) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) any joint venture, joint development or legal partnership, or any strategic alliance, joint development or partnership agreement, that is material to the Company and its Subsidiaries, taken as a whole;
(xii) each Contract required relating to be set forth on Section 3.21(a)(xi(1) outstanding indebtedness of the Company Disclosure Schedules.or the Subsidiaries of the Company for borrowed money, any indenture or any financial guaranty thereof (whether incurred, assumed, guaranteed or secured by any asset), in each case in a principal amount of $1,000,000 or more, other than (A) Contracts solely among the Company and any Subsidiary of the Company and (B) accounts receivables and payables incurred by the Company or any of its Subsidiaries in the ordinary course of business consistent with past practice and (2) any settlement facility;
(xiii) any Contract relating to any interest rate, foreign exchange, derivatives or hedging transaction with a notional amount equal to or greater than $1,000,000; and
(xiv) any “material contract” (as defined in Item 601(b)(4) or (10) of Regulation S-K under the Exchange Act, other than those agreements and arrangements described in Item 601(b)(10)(iii) of Regulation S-K);
(b) Each such Contract described Except as would not reasonably be expected to have, individually or in clauses (i) through (x) above is referred to herein as the aggregate, a “Material Contract”. Each Adverse Effect, each Material Contract is in full force and effect and is a legal, valid and legally binding obligation agreement of the Company and or its Subsidiaries Subsidiary, as applicable the case may be, and, to the knowledge of the Company, of each other party thereto, and is in full force and effect and enforceable by against the Company or such Subsidiary, as the applicable Subsidiarycase 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 Creditorsapplicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ Rights, except rights generally and general principles of equity). Except as would notnot reasonably be expected to have, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither none of the Company nor Company, any of its Subsidiaries, norSubsidiaries or, to the knowledge of the Company, any other party to a thereto is in default or breach under the terms of any Material Contract is in breach or violation and, to the knowledge of any provision ofthe Company, or in default under, any Material Contract, and no event or condition or circumstance has occurred that, with or without notice, notice or lapse of time or both, would constitute such a breachany event of default thereunder.
(c) True, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy correct and complete copies of each Material Contract has previously have been delivered made available by the Company to Parent.
Appears in 2 contracts
Sources: Merger Agreement (Cantaloupe, Inc.), Merger Agreement (Cantaloupe, Inc.)
Material Contracts. (a) Except for For purposes of this Agreement, as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Material Contract”) thatshall mean:
(i) would be required to be filed Any employment, severance, retention, deal bonus, consulting or other Contract with any Company Personnel which will require the payment of amounts by the Company or any of its Subsidiaries, as applicable, after the date hereof in excess of $150,000 per annum;
(ii) Any collective bargaining agreement with any labor union;
(iii) Any Contract for capital expenditures or the acquisition or construction of fixed assets which requires aggregate future payments in excess of $500,000;
(iv) Any Contract, other than the Company Certificate, Company Bylaws or other corporate documents of the Company and its Subsidiaries, containing covenants of the Company or any of its Subsidiaries to indemnify or hold harmless another person or group of persons, unless such indemnification or hold harmless obligation to such person, or group of persons, as the case may be, would not reasonably be expected to exceed a maximum of $500,000;
(v) Any Contract requiring aggregate future payments or expenditures in excess of $500,000 and relating to corrective cleanup, abatement, remediation or similar actions in connection with environmental liabilities or obligations;
(vi) Company IP Agreements;
(vii) Any Contract pursuant to which the Company or any of its Subsidiaries has entered into a partnership or joint venture with any other person (other than the Company or any of its Subsidiaries);
(viii) Any (i) indenture, mortgage, loan, guarantee or credit Contract under which the Company or any of its Subsidiaries has outstanding indebtedness or any outstanding note, bond, indenture or other evidence of indebtedness for borrowed money or otherwise or (ii) guaranteed indebtedness for money borrowed by others, in each case, for or guaranteeing an amount in excess of $500,000;
(ix) Any Contracts (i) providing for any “material contractoff-balance sheet arrangement” (as such term is defined in item 601(b)(10Item 303(a) of Regulation S-K promulgated pursuant to the Securities Act) where the result, purpose or effect of such Contract is to avoid disclosure of any material transaction involving or material liabilities of the SEC);
Company or any of its Subsidiaries in the Company’s published financial statements or other Company SEC Documents or (ii) includes providing for any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition loan by the Company or any of its Subsidiaries to the counterparty to such Contract (or to an affiliate of such counterparty) for an amount in excess of $250,000;
(x) Any Contract (i) containing a covenant that prohibits or restricts, in any material respect, the Company or any of its Subsidiaries from engaging in any business activities in any geographic area, line of business or customer segment or otherwise in competition with any Person, or (ii) that grants material exclusivity rights or “most favored nations” status to the counterparty thereof;
(xi) Contracts providing for “earn-outs,” “performance guarantees” or other similar contingent payments by the Company or any Subsidiary which payment obligations are or would reasonably be expected to be material to the Companyin excess of $500,000 during any twelve-month period;
(iiixii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Any Government Contract or Government Bid, other than any such Government Contract representing, or any guarantee of, indebtedness for borrowed money of Government Bid that is with a Government-owned hospital or ambulance service and that would not reasonably be expected to involve payments by or to the Company or any Subsidiary of the Company in excess of $100 million or 250,000 per annum;
(Bxiii) is a guarantee by Any material Contract (including guarantees) between the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company, on the one hand, and another Subsidiary of the Company or that is not wholly-owned Subsidiary of by the MLPCompany, on the other hand;
(ixxiv) relates Any Contract entered into on or after January 1, 2001 relating to the acquisition or disposition of any business or any assets (whether by merger, sale of stock or assets or otherwise) in an amount in excess of $500,000 to the extent that there are continuing obligations thereunder as of the date hereof; and
(xv) Any Contract (other than Contracts of the type described in subclauses (i) through (xiv) above) that involves aggregate payments by or to the Company or any of its Subsidiaries in excess of $500,000 per annum, other than purchase and sale of crude oil and products or sales orders or other Contracts entered into in the ordinary course of business consistent with past practice) pursuant to which practice that are terminable or cancelable by the Company or any of its Subsidiaries has any liability in excess of $100 million in any transaction without penalty on 90 days’ notice or series of related transactions;less.
(xb) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi3.09(a) of the Company Disclosure Schedules.
(b) Schedule sets forth a list of all Material Contracts as of the date of this Agreement. Each such Contract described in clauses (i) through (x) above is referred to herein as a “Material Contract”. Each Material Contract is a valid and legally binding obligation of the Company and its Subsidiaries as applicable and, to the knowledge of the Company, each other party thereto, and is in full force and effect effect, and enforceable by neither the Company nor any of its Subsidiaries has repudiated or the applicable Subsidiary, in each case, subject to Creditors’ Rightswaived any material provision of such Material Contract, except as would notto the extent that (i) such Material Contract has previously expired in accordance with its terms or (ii) the failure to be in full force and effect, or any such repudiation or waiver, individually or in the aggregate, has not had and would not reasonably be reasonably likely to have a Company Material Adverse Effect, and neither . Neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company’s Knowledge, any other party counterparty to a any such Material Contract Contract, has violated or is in breach or violation of alleged to have violated any provision of, or in default under, committed or failed to perform any Material Contract, and no event has occurred thatact which, with or without notice, lapse of time or both, would constitute a default under the provisions of any such a breach, violation or defaultMaterial Contract, except in each case for breaches, those violations or and defaults that would notwhich, individually or in the aggregate, has not had and would not reasonably be expected likely to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parent.
Appears in 2 contracts
Sources: Merger Agreement (McKesson Corp), Merger Agreement (Per Se Technologies Inc)
Material Contracts. (a) Except for this Agreementthe contracts, leases, licenses, commitments, and other instruments (collectively, the “Company Contracts”) specifically disclosed in the Company Filed SEC Reports or set forth in Section 5.14 of the Company Disclosure Schedule, as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) that:
by: (i) would be required to be filed by the Company as a “material contract” (as such term is defined in item 601(b)(10) of Regulation S-K of the SEC);
(ii) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Company;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement arrangement; (ii) any agreement relating to indebtedness for borrowed money or the formationdeferred purchase price of property, creationin either case whether incurred, operationassumed, management guaranteed or control secured by an asset and of any partnershipan amount, limited liability company or joint venture in which the Company ownstogether with all such other agreements, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of U.S. $100 million, 5,000,000 other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which practice in connection with the purchases by Company or any of its Subsidiaries has of wireless handset products for sale and resale; or (iii) any liability in excess agreement containing any provision or covenant limiting the ability of $100 million Company or any of its Subsidiaries to compete (with respect to the businesses conducted on the date hereof) with any Person in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedulesgeographic area.
(b) Each such Company Contract described specifically disclosed in clauses (i) through (x) above any Company Filed SEC Report or required to be disclosed pursuant to this Section 5.14 is referred to herein as a “Material Contract”. Each Material Contract is a valid and legally binding obligation of the Company and its Subsidiaries as applicable and, to the knowledge of the Company, each other party thereto, and is in full force and effect and enforceable by except to the extent it has previously expired in accordance with its terms. Except as set forth in Section 5.14 of the Company Disclosure Schedule or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually could not reasonably be expected to prevent or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, nor, to the knowledge materially delay consummation of the Company, any other party to a Material Contract is in breach Transaction or violation of any provision of, otherwise prevent or in default under, any Material Contract, materially delay Company from performing its obligations under this Agreement and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, could not reasonably be expected to have a Company Material Adverse Effect, neither Company nor any of its Subsidiaries has (i) 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 Company Contract or (ii) waived any right it may have under any of the Company Contracts. A copy Unless such document is made available on a website designated by the SEC, correct and complete copies of each Material Contract has all Company Contracts (or correct and complete narrative descriptions of any oral Company Contracts) specifically disclosed in any Company Filed SEC Report or required to be disclosed pursuant to this Section 5.14 have previously been delivered provided or made available to Parent.
Appears in 2 contracts
Sources: Merger Agreement (Intac International Inc), Merger Agreement (Intac International Inc)
Material Contracts. (a) Except for this AgreementAgreement and except for Contracts filed as exhibits to the Parent SEC Reports or as set forth in Section 4.17 of the Parent Disclosure Schedule, as of the date hereof, neither the Company nor any none of Parent or its Subsidiaries is a party to nor are any of Parent’s or its Subsidiaries’ properties or assets bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) thatby:
(i) any Contract that would be required to be filed by the Company as a “material contract” (as such term is defined in item 601(b)(10) of Regulation S-K Parent pursuant to Item 19 and paragraph 4 of the SEC)Instructions to Exhibits of Form 20-F under the Exchange Act;
(ii) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Company;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any a partnership, joint venture, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLPsimilar arrangement;
(ixiii) relates any Contract involving the payment or receipt of amounts by Parent or its Subsidiaries, or relating to indebtedness for borrowed money or any financial guaranty, of more than US$10,000,000;
(iv) any non-competition Contract or other Contract that purports to limit, curtail or restrict in any material respect the acquisition or disposition ability of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company Parent or any of its Subsidiaries has any liability in excess of $100 million to compete in any transaction geographic area, industry or series line of related transactionsbusiness;
(xv) any Contract that 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 that have a fair market value or purchase price of more than US$10,000,000;
(vi) any Contract that contains restrictions with respect to (A) is a material joint operating agreement (JOA) payment of dividends or any distribution with respect to equity interests of Parent or any of its Subsidiaries, (B) defines pledging of share capital of Parent or any material area of mutual interest its Subsidiaries or (AMI); orC) issuance of guaranty by Parent or any of its Subsidiaries;
(xivii) is a any Parent IP Agreements other than agreements for Off-the-Shelf Software; and
(viii) any Contract between Parent or any of its Subsidiaries and any director or executive officer of Parent or any Person beneficially owning five percent or more of the outstanding Parent Shares required to be set forth on Section 3.21(a)(xi) disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Company Disclosure Schedules.
Exchange Act (b) Each all such Contract Contracts described in clauses (i) through (xviii) above is referred to herein as a collectively, the “Parent Material ContractContracts”. ).
(b) Each of the Parent Material Contract is a Contracts constitutes the valid and legally binding obligation of the Company and Parent or its Subsidiaries as applicable andSubsidiaries, to the knowledge of the Company, each other party thereto, enforceable in accordance with its terms and is in full force and effect effect. There is no default under any Parent Material Contract so listed either by Parent or, to Parent’s knowledge, by any other party thereto, and enforceable by no event has occurred that with the Company lapse of time or the applicable Subsidiarygiving of notice or both would constitute a default thereunder by Parent or, to Parent’s knowledge, any other party, in each case, subject to Creditors’ Rights, case except as would not, not individually or in the aggregate, be reasonably likely to have a Company Parent Material Adverse Effect, and neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other .
(c) No party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Parent Material Contract has previously been delivered given notice to ParentParent of or made a claim against Parent with respect to any material breach or default thereunder.
Appears in 2 contracts
Sources: Merger Agreement (E-House (China) Holdings LTD), Merger Agreement (China Real Estate Information Corp)
Material Contracts. (a) Except for this AgreementThe following Contracts, as of the date hereofother than Parent Employee Plans, neither the Company nor to which Parent or any of its Subsidiaries is a party or by which any of them or any of their respective assets are bound are each referred to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (herein as a “Parent Material Contract”) that:
(i) any Contract in effect as of the date hereof that would be required to be filed by with the Company as a “material contract” (as such term is defined in item SEC pursuant Item 601(b)(10) of Regulation S-K of under the SEC)Securities Act;
(ii) includes any continuing Contract (other than Leases), including any development, manufacturing, supply or distribution agreement, that involved or would reasonably be expected to involve in the fiscal year ending December 31, 2024, the payment or delivery of cash or other contingent payment consideration by or to Parent or any of its Subsidiaries in an amount that had a value or having an expected value in excess of $8,000,000;
(iii) any Contract that (A) limits or purports to limit, in any material respect, the freedom of Parent or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area, (B) contains material exclusivity or “most favored nation” obligations or restrictions with respect to Parent or any of its Subsidiaries or (C) contains any other provisions that restrict the ability of Parent or any of its Subsidiaries to develop, use or maintain the Parent Platforms or to sell, market, distribute, promote, manufacture, develop, use, commercialize, or test or research any Parent Drug Product Candidate, directly or indirectly through Third Parties, in any material respect; and
(iv) all material Contracts pursuant to which Parent or any of its Subsidiaries (A) receives or is granted any license (including any “earnsublicense) to, or covenant not to be sued under, any Intellectual Property Rights (other than licenses to commercially available software, including off-out” the-shelf software, or indemnification obligationsother commercially available technology), including any Intellectual Property Rights (i) arising with respect to the Parent Platforms or any Parent Drug Product Candidate, or (ii) used in connection the operation of the business of Parent or its Subsidiaries as of immediately prior to the Effective Time or (B) grants any license (including any sublicense) to, or covenant not to be sued under, any Parent Intellectual Property (other than non-exclusive licenses granted in the ordinary course of business), in the case of each of clauses (A) and (B), that are material to the development of the Parent Platforms or the development or manufacture of any Parent Drug Product Candidate and involved aggregate payments by or to Parent or any of its Subsidiaries in excess of $8,000,000 in the fiscal year ending December 31, 2023.
(b) All Parent Material Contracts are, subject to the Bankruptcy and Equity Exceptions, (i) valid and binding obligations of Parent or a Subsidiary of Parent (as the case may be) and, to the knowledge of Parent, each of the other parties thereto, and (ii) in full force and effect and enforceable in accordance with their respective terms against Parent or its Subsidiaries (as the acquisition case may be) and, to the knowledge of Parent, each of the other parties thereto (in each case except for such Parent Material Contracts that are terminated after the date of this Agreement in accordance with their respective terms, other than as a result of a default or disposition breach by the Company Parent or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected of the provisions thereof), except where the failure to be material to the Company;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company or any of its Subsidiaries has any liability in excess of $100 million in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedules.
(b) Each such Contract described in clauses (i) through (x) above is referred to herein as a “Material Contract”. Each Material Contract is a valid and legally binding obligation of the Company obligations and its Subsidiaries as applicable and, to the knowledge of the Company, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject has not had and would not reasonably be expected to Creditors’ Rights, except as would nothave, individually or in the aggregate, be reasonably likely to have a Company Parent Material Adverse Effect. To the knowledge of Parent, as of the date of this Agreement, no Person is seeking to terminate or challenge the validity or enforceability of any Parent Material Contract, except such terminations or challenges which have not had and neither would not reasonably be expected to have, individually or in the Company aggregate, a Parent Material Adverse Effect. Neither Parent nor any of its Subsidiaries, nor, to the knowledge of the CompanyParent, any of the other party to a Material Contract is in breach or violation of parties thereto, has violated any provision of, or in default under, committed or failed to perform any Material Contract, and no event has occurred that, act that (with or without notice, lapse of time or both, ) would constitute such a breachdefault under any provision of, violation and neither Parent nor any of its Subsidiaries has received written notice that it has violated or defaultdefaulted under, any Parent Material Contract, except for breaches, those violations and defaults (or defaults potential defaults) that would notnot have had and would not reasonably be expected to have, individually or in the aggregate, reasonably be expected to have a Company Parent Material Adverse Effect. A copy Parent has made available to the Company true and complete copies of each Parent Material Contract has previously been delivered referred to Parentin clause (i) of the definition thereof as in effect as of the date hereof.
Appears in 2 contracts
Sources: Transaction Agreement (Recursion Pharmaceuticals, Inc.), Transaction Agreement (Exscientia PLC)
Material Contracts. (ai) Except for this AgreementContracts set forth in Section 3.2(k) of its Disclosure Letter, as of the date hereofof this Agreement, neither the Company it nor any of its Subsidiaries Subsidiaries, nor any of their respective assets, businesses or operations, is a party to, or is bound or affected by, or receives benefits under, (A) any Contract relating to the borrowing of money by it or bound any of its Subsidiaries or the guarantee by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) that:
(i) would be required to be filed by the Company as a “material contract” (as such term is defined in item 601(b)(10) of Regulation S-K of the SEC);
(ii) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by the Company it or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Company;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person obligation (other than the CompanyContracts pertaining to fully- secured repurchase agreements, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation trade payables and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement Contracts relating to the formationborrowings, creation, operation, management deposit-takings or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products guarantees made in the ordinary course of business consistent with past practice), (B) pursuant to which any Contract containing a non-compete or client or customer non-solicit requirement or any other provisions that limit the Company ability of it or any of its Subsidiaries has any liability in excess of $100 million to compete in any transaction line of business or series with any Person, or that involve any restriction of related transactions;
the geographic area in which, or method by which, it or any of its Subsidiaries may carry on its business (x) (A) is a material joint operating agreement (JOAother than as may be required by Law or any Governmental Authority) or which requires referrals of business or requires it or any of its Affiliates to make available investment opportunities to any Person on a priority, equal or exclusive basis, (BC) defines any material area Contract with respect to the employment of mutual interest any directors, executive officers or employees, or with any consultants that are natural Persons involving the payment of U.S.$500,000 or more per annum, (AMI); or
(xiD) is a any Contract required to be set forth on Section 3.21(a)(xi) which, upon the execution or delivery of this Agreement or consummation of the Company Disclosure Schedules.
transactions contemplated by this Agreement will (beither alone or upon the occurrence of any additional acts or events) Each such Contract described result in clauses any payment (iincluding severance payment) through (x) above is referred to herein as a “Material Contract”. Each Material Contract is a valid and legally binding obligation of the Company and its Subsidiaries as applicable and, to the knowledge of the Company, each other party thereto, and is in full force and effect and enforceable by the Company becoming due from it or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, (E) any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, could reasonably be expected to have a Company Material Adverse Effectprohibit, delay or materially impair the consummation of any of the Transactions, (F) any Contract (or group of Contracts with the same party (or its Affiliates) involving similar transactions) that involves expenditures or receipts by it or any of its Subsidiaries in excess of U.S.$5,000,000 per year not entered into in the ordinary course of business consistent with past practice, (G) any Contract with an Affiliate, (H) any Contract that grants any right of first refusal, right of first offer or similar right with respect to the sale or other transfer of any material assets, rights or properties of it or its Subsidiaries or (I) any Contract with any Governmental Authority (other than routine or customary Contracts with any self-regulatory body). A copy With respect to each of each Material Contract has previously been delivered its Contracts required to Parent.be disclosed in its Disclosure Letter pursuant to this Section 3.2(k)(i):
Appears in 2 contracts
Sources: Transaction Agreement, Transaction Agreement
Material Contracts. (a) Except for this AgreementSchedule 4.17(a) of the Company Disclosure Letter, together with the lists of exhibits contained in the Company SEC Documents and Schedules 4.10(a) and 4.10(l) listing material Company Plans, sets forth a true and complete list, as of the date hereofof this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) thatof:
(i) would be required to be filed by the Company as a each “material contract” (as such term is defined in item Item 601(b)(10) of Regulation S-K of under the SECExchange Act);
(ii) includes any continuing each contract that provides for the acquisition, disposition, license, use, distribution or other contingent payment obligations (including any “earn-out” outsourcing of assets, services, rights or indemnification obligations) arising in connection with the acquisition or disposition by properties of the Company or any of its Subsidiaries involving annual payments in excess of any business $8,000,000, other than contracts in which payment the applicable acquisition or disposition has been consummated and there are no liabilities of the Company or its Subsidiaries remaining or obligations are of the Company or would reasonably be expected to be material to the Companyits Subsidiaries ongoing;
(iii) each contract relating to Indebtedness (including commitments with respect thereto) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $5,000,000, other than (x) agreements solely between or among the Company and its Subsidiaries and (y) any notes or loans made by the Company or its Subsidiaries to franchisees;
(iv) each Company Material Real Property Lease;
(v) each contract that is a non-competition contract or other contract that (A) limits purports to limit in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries) may engage or the manner or locations in which any of them may so engage in any business (including through “any contract containing any area of mutual interest, joint bidding area, joint acquisition area, or non-competition” compete or “exclusivity” provisionssimilar type of provision), (B) would could require the disposition of any material assets or line of business of the Company or its Subsidiaries (or, after the Effective Time, Parent or its Subsidiaries Subsidiaries) or (C) grants “most favored nation” status with respect to any material obligations that, after prohibits or limits the Effective Time, would apply to Parent or any rights of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries to make, sell or distribute any products or services, or use, transfer or distribute, or enforce any of their rights with respect to, any of their material assets, other than, in each case, as may be set forth in any Franchise Agreement;
(vi) each contract involving the pending acquisition or sale of (or option to purchase or sell) any assets or properties of the Company for which the aggregate consideration (or the fair market value of such indebtedness of any person other than consideration, if non-cash) payable to or from the Company or a wholly-owned Subsidiary any of the Company in excess of its Subsidiaries exceeds $100 million8,000,000;
(vvii) grants each material partnership, material joint venture or similar material arrangement with a third party, other than with arrangements exclusively among the Company and/or its wholly owned Subsidiaries;
(Aviii) each Labor Agreement;
(ix) each agreement under which the Company or any of its Subsidiaries has advanced or loaned any amount of money to any of its officers, directors, employees, Company Agents or consultants;
(x) each agreement that contains any “most favored nation” or most favored customer provision, call or put option, preferential right or rights of first refusalor last offer, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, refusal to any person (other than the Company, a wholly-owned Subsidiary of which the Company or a wholly-owned Subsidiary any of the MLP) with respect to its Subsidiaries or any asset of their respective Affiliates is subject and that is material to the Company;
(vi) was entered into to settle business of the Company and its Subsidiaries, taken as a whole, except for any material litigation and agreement in which imposes material ongoing obligations on such provision is solely for the benefit of the Company or any of its Subsidiaries;
(viixi) limits each contract (a) pursuant to which the Company or restricts its Subsidiaries grants or receives a license or similar right with respect to any Company Intellectual Property, other than (i) licenses received with respect to commercially available software or information technology services, or (ii) non-exclusive licenses granted to customers, franchisees or service providers in the Ordinary Course or (b) relating to the development of material Intellectual Property (other than agreements with employees or contractors on the Company’s or its Subsidiaries’ standard form of such agreements made available to Parent) or (c) limiting the Company’s or any of its Subsidiaries’ ability to use, enforce or disclose any Company Owned IP in any material respect; and
(xii) any contract not otherwise described in any other subsection of this Section 4.17(a) that obligates the Company or any of its Subsidiaries to declare make any future capital investment or pay dividends or make distributions in respect capital expenditure outside of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more Ordinary Course and has invested or is contractually required to invest in excess of $100 million, other than with respect to 8,000,000 in any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
twelve (ix) relates to the acquisition or disposition of any business or assets 12)-month period (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which contracts between the Company or any of and its Subsidiaries has any liability in excess of $100 million in any transaction or series of related transactions;Subsidiaries).
(xb) (A) is a material joint operating agreement (JOA) Collectively, the contracts set forth or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be set forth on in Section 3.21(a)(xi4.17(a) of are herein referred to as the “Company Disclosure SchedulesContracts.
(b) Each such Contract described ” Except as would not have, individually or in clauses the aggregate, a Company Material Adverse Effect, (i) through (x) above is referred to herein as a “Material Contract”. Each Material each Company Contract is a valid legal, valid, binding and legally binding obligation of enforceable in accordance with its terms on the Company and each of its Subsidiaries as applicable that is a party thereto and, to the knowledge of the Company, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiaryeffect, in each casesubject, subject as to enforceability, to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and (ii) neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to a Material Contract Subsidiaries is in breach or violation of default under any provision of, or in default under, any Material Company Contract, and no event has occurred that, with or without notice, the lapse of time or the giving of notice or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregateaggregate with other events, would reasonably be expected to have result in a breach thereof or default thereunder by the Company Material Adverse Effect. A copy or its Subsidiaries, or to the knowledge of each Material the Company, as of the date hereof, any other party thereto and (iii) there are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Contract and neither the Company nor any of its Subsidiaries has previously been delivered received any written notice of the intention of any other Person to Parentany such Company Contract that such Person intends to terminate or claim a material breach under any Company Contract.
Appears in 2 contracts
Sources: Merger Agreement (Compass, Inc.), Merger Agreement (Anywhere Real Estate Inc.)
Material Contracts. (a) Except for this Agreementas set forth in Section 3.19(a) of the Company Disclosure Schedule, as of the date hereofof this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) thatby:
(i) would be required to be filed by the Company as a any “material contract” (as such term is defined in item Item 601(b)(10) of Regulation S-K of the SEC) (other than any Company Benefit Plan);
(ii) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection Contract with the acquisition or disposition by the Company or any of its Subsidiaries of directors or officers (other than any business which payment obligations are or would reasonably be expected to be material to the CompanyCompany Benefit Plan);
(iii) (A) limits in any Contract that imposes any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations restriction on the Company right or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare compete with any other person, solicit any client or pay dividends customer, acquire or make distributions dispose of the securities of another person, or any other provision that materially restricts the conduct of any line of business by the Company or its Subsidiaries (or that following the Closing will materially restrict the ability of Parent or its Subsidiaries to engage in any line of business);
(iv) any Contract that (A) is expected to result in the payment of more than $5,000,000 by the Company and its Subsidiaries in the fiscal year ending August 30, 2014 or the fiscal year ending in August 2015 and (B) (1) obligates the Company or its Subsidiaries (or following the Closing, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or (2) contains “most favored nation” or similar covenants;
(v) any Collective Bargaining Agreement;
(vi) any agreement relating to Indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(vii) any Contract that grants any right of first refusal, right of first offer or similar right with respect to any material assets, rights or properties of their capital stock, partner interests, membership interests the Company or other equity interestsits Subsidiaries;
(viii) is any Contract that provides for the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise) and with any outstanding obligations as of the date of this Agreement that are material to the Company and its Subsidiaries, taken as a whole;
(ix) any material partnershipjoint venture, partnership or limited liability company, joint venture company agreement or other similar agreement or arrangement Contract relating to the formation, creation, operation, management or control of any partnershipjoint venture, partnership or limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 millioncompany, other than with respect to any wholly-owned Subsidiary of such Contract solely between the Company and its Subsidiaries or wholly-owned Subsidiary of among the MLPCompany’s Subsidiaries;
(ixx) relates to any Contract expressly limiting or restricting the acquisition or disposition ability of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company or any of its Subsidiaries has (i) to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the case may be, (ii) to make loans to the Company or any liability of its Subsidiaries or (iii) to grant Liens on the property of the Company or any of its Subsidiaries;
(xi) any Contract that obligates the Company or any of its Subsidiaries to make any loans, advances or capital contributions to, or investments in excess of $100 million 5,000,000 in, any person (other than the Company or any of its Subsidiaries), other than loans and advances to employees of the Company or any of its Subsidiaries in any transaction or series the ordinary course of related transactionsbusiness;
(xxii) any material Contract (A) is a material joint operating agreement granting the Company or one of its Subsidiaries any right to use any Intellectual Property (JOAother than commercially available software licenses with annual fees of less than $1,000,000, or licenses ancillary to other agreements concerning third party products or services), (B) permitting any third person to use, enforce or register any Intellectual Property of the Company or its Subsidiaries, including any license agreements, coexistence agreements and covenants not to ▇▇▇ (other than non-exclusive licenses to customers and suppliers in the ordinary course of business) or (BC) defines restricting the right of the Company or its Subsidiaries to use or register any material area Intellectual Property of mutual interest the Company or its Subsidiaries;
(AMI)xiii) any Contract (other than Contracts for the acquisition of inventory in the ordinary course of business) that involved the payment of more than $25,000,000 by the Company and its Subsidiaries in the fiscal year ending August 31, 2013 or that is expected to result in the payment of such amount by the Company and its Subsidiaries in the fiscal year ending August 30, 2014; or
(xixiv) any Contract that involved the receipt of more than $10,000,000 by the Company and its Subsidiaries in the fiscal year ending August 31, 2013 or that is a Contract required expected to be set forth on Section 3.21(a)(xi) result in the receipt of such amount by the Company and its Subsidiaries in the fiscal year ending August 31, 2014. All contracts of the Company Disclosure Schedules.
(b) Each such Contract described types referred to in clauses (i) through (xxiv) above is (whether or not set forth on Section 3.19 of the Company Disclosure Schedule) are referred to herein as a “Material Contract”. Each Material Contract is a valid and legally binding obligation of the Company and its Subsidiaries as applicable and, to the knowledge of the Company, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parent.as
Appears in 2 contracts
Sources: Merger Agreement (Dollar Tree Inc), Merger Agreement (Family Dollar Stores Inc)
Material Contracts. (a) Except for this Agreement, the Parent Benefit Plans, agreements with customers for the provision of drilling and related services, agreements filed as exhibits to the Parent SEC Documents or as set forth on the applicable subsection of Section 4.19(a) of the Parent Disclosure Schedule, as of the date hereof, neither the Company Parent nor any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) thatby:
(i) would be required to be filed by the Company as a any “material contract” (as such term is defined in item Item 601(b)(10) of Regulation S-K of the SEC);
(ii) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Company;
(iii) Contract that (A) limits in imposes any material respect either restriction on the type right or ability of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after to compete with any other person or acquire or dispose of the Effective Timesecurities of another person (other than any agreement related to a potential Takeover Proposal) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets contains an exclusivity or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after clause that restricts the Effective Time, would apply to business of Parent or any of its Subsidiaries, including the Company and its SubsidiariesSubsidiaries in a material manner;
(iviii) (A) is an indentureany joint venture, loan partnership or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture company agreement or other similar agreement or arrangement Contract relating to the formation, creation, operation, management or control of any partnershipjoint venture, partnership or limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 millioncompany, other than with respect to any wholly-owned Subsidiary of the Company such Contract solely between Parent and its Subsidiaries or wholly-owned Subsidiary of the MLPamong Parent’s Subsidiaries;
(ixiv) relates to any Contract expressly limiting or restricting the acquisition or disposition ability of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company Parent or any of its Subsidiaries has to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the case may be;
(v) any Contract that by its terms calls for aggregate payments by or to Parent or any of its Subsidiaries of more than $50.0 million in the aggregate over the remaining term of such Contract, except for (A) Contracts with a customer and (B) any such Contract that may be cancelled by Parent or any of its Subsidiaries with a penalty or other liability of less than $10.0 million to Parent or any of its Subsidiaries, upon notice of 60 days or less; and
(vi) any Contract that contains “earn out” or other contingent payment obligations, or remaining indemnity or similar obligations, that could reasonably be expected to result in payments after the date hereof by Parent or any of its Subsidiaries in excess of $100 million in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) 50.0 million. All Contracts of the Company Disclosure Schedules.
(b) Each such Contract described types referred to in clauses (i) through (xvi) above is are referred to herein as (“Parent Material Contracts”).
(b) Parent has delivered or made available to the Company true and complete copies of all Parent Material Contracts, subject to certain redactions made in order to comply with legal requirements.
(c) Except as would not reasonably be expected to have, individually or in the aggregate, a “Parent Material Adverse Effect, (i) neither Parent nor any Subsidiary of Parent is in breach of or default under the terms of any Parent Material Contract”. Each , (ii) to Parent’s knowledge, no other party to any Parent Material Contract is in breach of or default under the terms of any Parent Material Contract and (iii) each Parent Material Contract is a valid and legally binding obligation of Parent or the Company and its Subsidiaries as applicable Subsidiary of Parent that is party thereto and, to the knowledge Parent’s knowledge, of the Company, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each caseeffect, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to ParentRemedies Exceptions.
Appears in 2 contracts
Sources: Merger Agreement (Atwood Oceanics Inc), Merger Agreement (Ensco PLC)
Material Contracts. (a) Except for this Agreement, the Company Benefit Plans or as of filed with the SEC prior to the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by by, as of the date hereof, any agreement, lease, easement, license, contract, note, mortgage, indenture Contract (whether written or other legally binding obligation (“Contract”oral) that:
(i) would be required to be filed by the Company as which is a “material contract” (as such term is defined in item Item 601(b)(10) of Regulation S-K of the SEC);
) to the Company; (ii) includes 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 continuing asset) in excess of $5,000,000; (iii) which contains any provision that prior to or other contingent payment obligations following the Effective Time would by its terms restrict or alter the conduct of business of, or purport to restrict or alter the conduct of business of, the Company, any of its Subsidiaries, Parent or, to the Company’s Knowledge, any Affiliate of the Parent; and (including any “earn-out” or indemnification obligationsiv) arising in connection with the acquisition or disposition which by its terms calls for aggregate payments by the Company or any of its Subsidiaries of more than $5,000,000 over the remaining term of such Contract, except for any business which payment obligations are or would reasonably such Contract that may be expected to be material to the Company;
(iii) (A) limits in canceled, without any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract penalty or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, liability to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
, upon notice of 90 days or less (viiall contracts of the type described in this Section 3.21(a), whether or not set forth in the Company Disclosure Letter or the Company SEC Documents, being referred to herein as “Company Material Contracts”). Neither the Company nor any of its Subsidiaries is a party to any Contract (other than any Contracts to which Parent or any Affiliate of Parent is a party) limits that purports to be binding on, or restricts imputes any obligations on, Parent or, to the ability Company’s Knowledge, any Affiliate of Parent other than (i) the Company or its Subsidiaries or (ii) any employee, officer or director of the Company or any of its Subsidiaries to declare or pay dividends or make distributions (in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company or any of its Subsidiaries has any liability in excess of $100 million in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMIsuch capacity); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedules.
(b) Each such Contract described in clauses (i) through (x) above is referred to herein as a “Material Contract”. Each Company Material Contract is a valid and legally binding obligation of on the Company and any of its Subsidiaries as applicable and, to the knowledge of the Company, each other extent such Subsidiary is a party thereto, as applicable, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rightseffect, except as would notwhere the failure to be valid, binding and in full force and effect, either individually or in the aggregate, would not have a Company Material Adverse Effect, (ii) the Company and each of its Subsidiaries has in all material respects performed all obligations required to be reasonably likely performed by it to date under each Company Material Contract, except where such noncompliance, either individually or in the aggregate, would not have a Company Material Adverse Effect, and (iii) neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to a Material Contract is in breach or violation of any provision Subsidiaries has received written notice of, or in default underotherwise has Knowledge of, the existence of any Material Contractevent or condition which constitutes, and no event has occurred thator, with after notice or without notice, lapse of time or both, would constitute will constitute, a material default on the part of the Company or any of its Subsidiaries under any such a breachCompany Material Contract, violation or except where such default, except for breaches, violations or defaults that would not, either individually or in the aggregate, reasonably be expected to would not have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parent.
Appears in 2 contracts
Sources: Merger Agreement (Leever Daniel H), Merger Agreement (Court Square Capital Partners II LP)
Material Contracts. (a) Except for this Agreement, as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”Section 2.18(a) that:
(i) would be required to be filed by the Company as a “material contract” (as such term is defined in item 601(b)(10) of Regulation S-K of the SEC);
(ii) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Company;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money Disclosure Schedule lists all of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant following contracts to which the Company or any of its Subsidiaries has any liability in excess of $100 million in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement party or by which any of their respective properties or assets are bound: (JOAi) employment, consulting, non-competition, severance, golden parachute or indemnification contract (B) defines including, without limitation, any material area contract to which the Company or any of mutual interest (AMI); or
(xi) its Subsidiaries is a Contract required to be set forth on Section 3.21(a)(xi) party involving employees of the Company Disclosure Schedules.
or any of its Subsidiaries); (bii) Each such Contract described in clauses licensing, merchandising or distribution agreements; (iiii) through contracts granting a right of first refusal or first negotiation; (xiv) above is referred to herein as a “Material Contract”. Each Material Contract is a valid and legally binding obligation partnership or joint venture agreements; (v) agreements for the acquisition, sale or lease of material properties or assets of the Company (by merger, purchase or sale of assets or stock or otherwise) entered into since January 1, 1992; (vi) contracts or agreements with any Governmental Entity; (vii) other contracts which materially affect the business, properties or assets of the Company and its Subsidiaries taken as applicable anda whole which are not otherwise disclosed in this Agreement or were entered into other than in the ordinary course of business; and (viii) all commitments and agreements to enter into any of the foregoing (collectively, together with any such contracts entered into in accordance with Section 4.1 hereof, the "Contracts"). The Company has delivered or otherwise made available to Parent true, correct and complete copies of the Contracts listed in Section 2.18(a) of the Company Disclosure Schedule, together with all amendments, modifications and supplements thereto and all side letters to which the Company is a party affecting the obligations of any party thereunder.
(b) Except as set forth in Section 2.18(b) of the Company Disclosure Schedule:
(i) Each of the Contracts is valid and enforceable in accordance with its terms, and there is no default under any Contract so listed either by the Company or, to the knowledge of the Company, each by any other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to thereto which could have a Company Material Adverse Effect, and neither 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 nor any of its Subsidiaries, noror, to the knowledge of the Company, any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to which could have a Company Material Adverse Effect. A copy of each Material .
(ii) No party to any such Contract has previously given notice to the Company of or made a claim against the Company with respect to any material breach or material default thereunder.
(c) With respect to those Contracts that were assigned or subleased to the Company by a third party, all necessary consents to such assignments or subleases have been delivered to Parentobtained.
Appears in 2 contracts
Sources: Merger Agreement (American List Corp), Merger Agreement (Snyder Communications Inc)
Material Contracts. (a) Except as set forth in Section 3.19 of the Company Disclosure Schedule and except for this AgreementCompany Benefit Plans, as of the date hereofof this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) thatby:
(i) would be required to be filed by the Company as a any “material contract” (as such term is defined in item Item 601(b)(10) of Regulation S-K of the SEC);
(ii) includes any continuing Contract between the Company or any Subsidiary of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any Subsidiary of the Company or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including (but not limited to) any Contract pursuant to which the Company or any Subsidiary of the Company has an obligation to indemnify such officer, director, Affiliate or family member;
(iii) any Contract that imposes any restriction on the right or ability of the Company, any of its Subsidiaries or any Affiliate of them, to compete with any other person in any line of business or geographic region, or solicit any customer (or that following the Effective Time will restrict the right or ability of Parent or its Subsidiaries to engage in any line of business or compete in any geographic area) excluding any Contracts with sales representatives or distributors;
(iv) any Contract that obligates the Company or any of its Subsidiaries (or following the Effective Time, Parent or its Subsidiaries) to conduct business with any third party on a preferential or exclusive basis or which contains a “most favored nation” or similar covenant excluding any Contracts with sales representatives or distributors;
(v) any acquisition or divestiture Contract that contains any “earnout” or other contingent payment obligations that are outstanding obligations of the Company or any of its Subsidiaries as of the date of this Agreement;
(including vi) a mortgage, indenture, security agreement, guaranty, pledge or other agreement or instrument relating to Indebtedness (other than accounts receivable or accounts payable in the ordinary course of business and consistent with past practice) in an amount in excess of $500,000 in the aggregate;
(vii) any “earn-out” Contract that grants any right of first refusal or indemnification obligationsright of first offer or similar right with respect to any assets, rights or properties of the Company or its Subsidiaries that are material;
(viii) arising in connection with any Contract that provides for the acquisition or disposition by the Company or any of its Subsidiaries of any assets (other than acquisitions or dispositions of assets in the ordinary course of business) or a business which payment (whether by merger, sale of stock or otherwise) that contains ongoing obligations that are or would reasonably be expected to be material to the Company and the Company’s Subsidiaries, taken as a whole;
(iiiix) (A) limits in any material respect either the type of business in which the Company joint venture, partnership or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture company agreement or other similar agreement or arrangement Contract relating to the formation, creation, operation, management or control of any partnershipjoint venture, partnership or limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 millioncompany, other than with respect to any wholly-owned Subsidiary of such Contract solely between the Company and its Subsidiaries or wholly-owned Subsidiary of among the MLPCompany’s Subsidiaries;
(ixx) relates to any Contract expressly limiting or restricting the acquisition or disposition ability of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company or any of its Subsidiaries has (A) to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the case may be, (B) to make loans to the Company or any liability of its Subsidiaries, or (C) to grant Liens on the property owned by the Company or any of its Subsidiaries;
(xi) any Contract that obligates the Company or any of its Subsidiaries to make any loans, advances or capital contributions to, or investments in, any person, except for (A) loans or advances for indemnification, attorneys’ fees, or travel and other business expenses in the ordinary course of business, (B) extended payment terms for customers in the ordinary course of business or (C) loans, advances or capital contributions to, or investments in, any Person that is not an Affiliate or employee of the Company not in excess of $100 million in any transaction or series of related transactions150,000 individually;
(xxii) any settlement agreement (A) with a Governmental Entity, (B) that requires the Company and its Subsidiaries to pay more than $250,000 after the date of this Agreement or (C) imposes any restrictions on the business of the Company or its Subsidiaries;
(xiii) any Contract with a Top Customer, Top Distributor or Top Supplier (excluding, for clarity, purchase orders issued in the ordinary course of business, confidentiality agreements, statements of work and other ancillary agreements);
(xiv) any Contract that involved the payment of more than $1,000,000 by the Company and its Subsidiaries in the fiscal year ended March 31, 2017 or that is a material joint operating agreement expected to result in the payment of such amount by the Company and its Subsidiaries in the fiscal year ending March 31, 2018 (JOAexcluding Contracts (A) with customers, distributors, suppliers or Representatives or (B) defines that are purchase orders issued in the ordinary course of business);
(xv) any Contract that involved the receipt of more than $1,000,000 by the Company and its Subsidiaries in the fiscal year ended March 31, 2017 or that is expected to result in the receipt of such amount by the Company and its Subsidiaries in the fiscal year ending March 31, 2018 (excluding Contracts (A) with customers, distributors, suppliers or Representatives or (B) that are purchase orders issued in the ordinary course of business);
(xvi) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service and under which the Company paid more than $1,000,000 to the relevant supplier in the fiscal year ended March 31, 2017 or that is expected to result in the payment of such amount by the Company and its Subsidiaries in the fiscal year ending March 31, 2018 (excluding purchase orders issued in the ordinary course of business);
(xvii) any material area Government Contract that has not been closed out;
(xviii) any Contract relating to the creation of mutual interest any Lien (AMI)other than Permitted Liens) with respect to any material asset of the Company or any Subsidiary of the Company; or
(xixix) is a any Contract required involving the licensing of any material Company Owned Intellectual Property from the Company or any of its Subsidiaries to be set forth on Section 3.21(a)(xi) any third party, or the licensing of any material Company Licensed Intellectual Property from any third party to the Company or any of its Subsidiaries (excluding non-exclusive licenses granted in connection with the sale of products and services to customers in the ordinary course of the business, and excluding commercially available, off-the-shelf, software programs), in each case with present or future obligations binding on the Company Disclosure Schedules.
(b) Each such Contract described or any of its Subsidiaries. All contracts of the types referred to in clauses (i) through (xxix) above is (whether or not set forth on Section 3.19 of the Company Disclosure Schedule), are referred to herein as “Company Material Contracts.” The Company has made available to Parent prior to the date of this Agreement a “Material Contract”. Each complete and correct copy of each Company Material Contract is a valid and legally binding obligation as in effect on the date of this Agreement.
(b) Neither the Company nor any Subsidiary of the Company and its Subsidiaries as applicable is in breach of or default under the terms of any Company Material Contract and, to the knowledge of the Company, each no other party thereto, and to any Company Material Contract is in full force and effect and enforceable by breach of or default under the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a terms of any Company Material Adverse Effect, Contract and neither no event has occurred or not occurred through the Company nor Company’s or any of its Subsidiaries, nor’ action or inaction or, to the knowledge of the Company, any other party to a Material Contract is in breach through the action or violation inaction of any provision ofthird party, that with notice or in default under, any Material Contract, and no event has occurred that, with or without notice, the lapse of time or both, both would constitute such a breachbreach of or default under the terms of any Company Material Contract, violation or default, in each case except for breaches, violations or defaults that as would notnot reasonably be expected to have, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy Each Company Material Contract is a valid and binding obligation of the Company or the Subsidiary of the Company that is party thereto and, to the knowledge of the Company, of each other party thereto (except in each case as enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, affecting creditors’ rights generally, and that 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 is in full force and effect, in each case except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract and as of the date of this Agreement, neither the Company nor any of its Subsidiaries has previously been delivered received any written notice of the intention of any other party to Parentany Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract prior to its stated expiration date, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since April 1, 2016 and prior to the date of this Agreement, no Top Supplier, Top Customer or Top Distributor has canceled, terminated or substantially curtailed its relationship with the Company or any Subsidiary of the Company, given written notice to the Company or any Subsidiary of the Company of any intention to cancel, terminate or substantially curtail its relationship with the Company or any Subsidiary of the Company, or, to the knowledge of the Company, threatened to do any of the foregoing.
Appears in 2 contracts
Sources: Merger Agreement (Ixys Corp /De/), Merger Agreement (Littelfuse Inc /De)
Material Contracts. (ai) Except for For purposes of this Agreement, as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“F▇▇▇▇▇ Material Contract”) that” shall mean:
(iA) would be required to be filed Any employment, severance, consulting or other Contract with an employee or former employee, officer or director of F▇▇▇▇▇ or any Subsidiary of F▇▇▇▇▇ (other than any unwritten Contract for the employment of any such employee or former employee implied at law) which will require the payment of amounts by F▇▇▇▇▇ or any Subsidiary of F▇▇▇▇▇, as applicable, after the Company as a “material contract” (as such term is defined date hereof in item 601(b)(10) excess of Regulation S-K of the SEC)$250,000 per annum;
(iiB) includes Any collective bargaining Contract with any continuing labor union;
(C) Any Contract for capital expenditures or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by construction of fixed assets which requires aggregate future payments in excess of $2,500,000;
(D) Any Contract containing covenants of F▇▇▇▇▇ or any Subsidiary of F▇▇▇▇▇ (1) to indemnify or hold harmless another Person or group of Persons, unless such indemnification or hold harmless obligation to such Person, or group of Persons, as the Company case may be, would not reasonably be expected to exceed a maximum of $1,000,000 (except for product warranty obligations in Contracts for the sale of goods in the ordinary course of business) or (2) not to (or otherwise restrict or limit the ability of F▇▇▇▇▇ or any of its Subsidiaries to) compete in any line of any business which payment obligations are or would reasonably be expected to be material to the Companygeographic area;
(iiiE) (A) limits Any Contract requiring aggregate future payments or expenditures in any material respect either the type excess of business $2,500,000 and relating to cleanup, abatement, remediation or similar actions in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status connection with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiariesenvironmental liabilities;
(ivF) (A) is an indentureAny license, loan or credit Contract, loan note, mortgage royalty Contract or other Contract representingwith respect to Intellectual Property which, pursuant to the terms thereof, requires payments by F▇▇▇▇▇ or any Subsidiary of F▇▇▇▇▇ in excess of $1,000,000 per annum;
(G) Any Contract pursuant to which F▇▇▇▇▇ or any Subsidiary of F▇▇▇▇▇ has entered into a partnership or joint venture with any other Person (other than F▇▇▇▇▇ or any Subsidiary of F▇▇▇▇▇);
(H) Any indenture, mortgage, loan, guarantee ofor credit Contract under which F▇▇▇▇▇ or any Subsidiary of F▇▇▇▇▇ has outstanding indebtedness or any outstanding note, bond, indenture or other evidence of indebtedness for borrowed money or otherwise or any guaranteed indebtedness for money borrowed by others, in each case, for or guaranteeing an amount in excess of the Company $2,500,000;
(I) Any Contract under which F▇▇▇▇▇ or any Subsidiary of the Company F▇▇▇▇▇ is (1) a lessee of real property, (2) a lessee of, or holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by a third Person, (3) a lessor of real property, or (4) a lessor of any tangible personal property owned by F▇▇▇▇▇ or any Subsidiary of F▇▇▇▇▇, in each case which requires annual payments in excess of $100 million 1,000,000;
(J) Any Contract (other than purchase or (Bsale orders in the ordinary course of business that are terminable or cancelable without penalty on 90 days’ notice or less) under which F▇▇▇▇▇ or any Subsidiary of F▇▇▇▇▇ is a guarantee purchaser or supplier of goods and services which, pursuant to the terms thereof, requires payments by the Company F▇▇▇▇▇ or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company F▇▇▇▇▇ in excess of $100 million1,000,000 per annum;
(vK) grants Any material Contract (Aincluding guarantees) rights of first refusal, rights of first negotiation between F▇▇▇▇▇ or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or F▇▇▇▇▇ and another Subsidiary of F▇▇▇▇▇ that is not wholly-owned Subsidiary of the MLPby F▇▇▇▇▇;
(ixL) relates Any Contract which requires payments by F▇▇▇▇▇ or any Subsidiary of F▇▇▇▇▇ in excess of $1,000,000 per annum containing “change of control” or similar provisions;
(M) Any Contract entered into on or after January 1, 2001 relating to the acquisition or disposition of any business or any assets (whether by merger, sale of stock or assets or otherwise), in an amount in excess of $5,000,000 (all of which Contracts have been made available to Apogent prior to the date hereof in the data room maintained by F▇▇▇▇▇’▇ counsel in connection with the transactions contemplated hereby);
(N) Any Contract (other than Contracts of the type described in subclauses (A) through (M) above) that involves aggregate payments by or to F▇▇▇▇▇ or any Subsidiary of F▇▇▇▇▇ in excess of $1,000,000 per annum, other than purchase and sale of crude oil and products or sales orders or other Contracts entered into in the ordinary course of business consistent with past practice) pursuant to which the Company practice that are terminable or any of its Subsidiaries has any liability in excess of $100 million in any transaction cancelable without penalty on 90 days’ notice or series of related transactions;less; and
(xO) (A) is a material joint operating agreement (JOA) Any Contract the termination or (B) defines any material area breach of mutual interest (AMI); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedules.
(b) Each such Contract described in clauses (i) through (x) above is referred to herein as a “Material Contract”. Each Material Contract is a valid and legally binding obligation of the Company and its Subsidiaries as applicable andwhich, to the knowledge of the Company, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, failure to obtain consent in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to a Material Contract is in breach or violation of any provision respect of, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse EffectEffect on F▇▇▇▇▇ and its Subsidiaries, taken as a whole.
(ii) Schedule. A copy Section 3.2(q)(ii) of each the F▇▇▇▇▇ Disclosure Schedule sets forth a list of all F▇▇▇▇▇ Material Contract has previously been delivered Contracts as of the date hereof. With respect to Parentthe Contracts described in (i) Section 3.2(q)(i)(D), (F), (I), (J), (L) and (N) of this Agreement, Section 3.2(q)(ii) of the F▇▇▇▇▇ Disclosure Schedule sets forth only Contracts which require payments, or in the case of clause (D) involve obligations, in excess of $2,500,000 and (ii) Section 3.2(q)(i)(N) of this Agreement, Section 3.2(q)(ii) of the F▇▇▇▇▇ Disclosure Schedule sets forth only Contracts involving payments to F▇▇▇▇▇, or any Subsidiary of F▇▇▇▇▇, in excess of $10,000,000.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Apogent Technologies Inc), Agreement and Plan of Merger (Fisher Scientific International Inc)
Material Contracts. (a) Except for this Agreement, as of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (excluding any Hydrocarbon Contract (as defined above but disregarding any materiality qualifiers in such definition) that is a lease, easement or other instrument constituting the chain of title to the properties and assets onshore in the United States owned or held by Company or any of its Subsidiaries) (each a “Contract”) that:
(i) would be required to be filed by the Company as a “material contract” (as such term is defined in item 601(b)(10) of Regulation S-K of the SEC);
(ii) includes any continuing contingent payment obligations or other contingent similar payment obligations (including any “earn-out” obligations) that would require payments to any person (other than the Company, a wholly-owned Subsidiary of the Company or indemnification obligationsa wholly-owned Subsidiary of the MLP, Parent, or any Subsidiary of the Parent) arising in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to result in future payments by the CompanyCompany or its Subsidiaries that exceed, individually or in the aggregate, $25 million;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply run to Parent the favor of any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP, Parent, or any Subsidiary of its Subsidiaries, including the Company and its SubsidiariesParent);
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 25 million (excluding any plugging and abandonment, decommissioning and/or asset retirement bonds or guarantees) or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million25 million (excluding any plugging and abandonment, decommissioning and/or asset retirement bonds or guarantees);
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company; provided that, in each case of (A) and (B), with respect to any Hydrocarbon Contract (as defined above but disregarding any materiality qualifiers in such definition) related to any properties or assets onshore in the United States, only to the extent that such rights would be triggered by the transactions contemplated under this Agreement;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest capital in excess of $100 25 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale or marketing of crude oil and products Hydrocarbons in the ordinary course of business consistent with past practice) pursuant to which the Company or any of its Subsidiaries has any liability in excess of $100 25 million in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) with a “Contract Area” greater than 10,000 gross surface acres or (B) defines creates any material presently unexpired area of mutual interest (AMI)) in favor of a person other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP, Parent, or any Subsidiary of Parent and sets forth an area of mutual interest area of greater than 10,000 gross surface acres; or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedules.
(b) Each such Contract described in clauses (i) through (xxi) above is referred to herein as a “Material Contract”. Each Material Contract is a valid and legally binding obligation of the Company and its Subsidiaries as applicable and, to the knowledge of the Company, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A Except for any Material Contracts filed without redaction as exhibits to the Company SEC Documents or the MLP SEC Documents, a copy of each Material Contract has previously been delivered made available to Parent.
Appears in 2 contracts
Sources: Merger Agreement (Noble Energy Inc), Merger Agreement (Noble Energy Inc)
Material Contracts. (a) Except for this AgreementSchedule 5.16 of the Parent Disclosure Letter, together with the lists of exhibits contained in the Parent SEC Documents, sets forth a true and complete list, as of the date hereofof this Agreement, neither of each Contract (excluding Employee Benefit Plans) described below in this Section 5.16(a) to which Parent or any Subsidiary of Parent is a party or by which it is bound, in each case as of the Company nor date of this Agreement (such Contracts being referred to herein as the “Parent Material Contracts”):
(i) other than Contracts providing for the acquisition, purchase, sale or divestiture of mortgage backed securities and debt securities entered into by Parent or any Subsidiary of Parent in the ordinary course of business, each Contract that involves a pending or contemplated merger, business combination, acquisition, purchase, sale or divestiture that requires Parent or any of its Subsidiaries is to dispose of or acquire assets or properties with a party fair market value in excess of $10,000,000;
(ii) each Contract that grants any right of first refusal or right of first offer or that limits the ability of Parent, any Subsidiary of Parent or any of their respective Affiliates to own, operate, sell, transfer, pledge or bound otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) that:counterparty thereto);
(iiii) would be required each Contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of Parent or any of its Subsidiaries to be filed by compete in any line of business or with any Person or geographic area;
(iv) each material partnership, joint venture, limited liability company or strategic alliance agreement (other than any such agreement solely between or among Parent and its wholly owned Subsidiaries);
(v) any Contract that was entered into to settle any material Proceeding and which imposes material ongoing obligations on Parent or any of its Subsidiaries after the Company Closing;
(vi) each Contract between or among Parent or any Subsidiary of Parent, on the one hand, and any officer, director or Affiliate (other than a wholly owned Subsidiary of Parent) of Parent or any of its Subsidiaries, or any of their respective “associates” or “immediate family” members (as a such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand; and
(vii) each “material contract” (as such term is defined in item Item 601(b)(10) of Regulation S-K of under the SEC);
(iiExchange Act) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligationsnot otherwise described in this Section 5.16(a) arising in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Company;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company or any of its Subsidiaries has any liability in excess of $100 million in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) of the Company Disclosure SchedulesParent.
(b) Each such Contract described Except as has not had, and would not reasonably be expected to have, individually or in clauses (i) through (x) above is referred to herein as the aggregate, a “Parent Material Contract”. Each Adverse Effect, each Parent Material Contract is a valid legal, valid, binding and legally binding obligation enforceable in accordance with its terms on Parent and each of the Company and its Subsidiaries as applicable that is a party thereto and, to the knowledge Knowledge of the CompanyParent, each other party thereto, and is in full force and effect effect, subject, as to enforceability, to the Enforceability Exceptions. Except as has not had, and enforceable by the Company or the applicable Subsidiary, in each case, subject would not reasonably be expected to Creditors’ Rights, except as would nothave, individually or in the aggregate, be reasonably likely to have a Company Parent Material Adverse Effect, and neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would notnot reasonably be expected, individually or in the aggregate, reasonably be expected to have prevent, or materially impair, interfere with, hinder or delay the consummation of, or materially adversely affect the ability of Parent to consummate, the Transactions, including the Merger, on a Company Material Adverse Effect. A copy timely basis, and in any event, prior to the End Date: (i) neither Parent nor any of each its Subsidiaries is in breach or default under any Parent Material Contract nor, to the Knowledge of Parent, is any other party to any such Parent Material Contract in breach or default thereunder; (ii) no event has previously been delivered occurred that (without or without notice or lapse of time, or both) would constitute a violation or breach of, or default under any Parent Material Contract; and (iii) neither Parent nor any of its Subsidiaries has received written notice of the intention of any counterparty to Parenta Parent Material Contract to cancel, terminate, materially change the scope of rights under or fail to renew any Parent Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Two Harbors Investment Corp.), Merger Agreement (Two Harbors Investment Corp.)
Material Contracts. (a) Except for this Agreement, the Company Benefit Plans and agreements filed as exhibits to the Company SEC Documents, as of the date hereofof this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) thatby:
(i) would be required to be filed by the Company as a any “material contract” (as such term is defined in item Item 601(b)(10) of Regulation S-K of the SEC);
(ii) includes any continuing Contract that (A) expressly imposes any restriction on the right or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by ability of the Company or any of its Subsidiaries to compete with, or acquire or dispose of the securities of, any business which payment obligations are other person or would reasonably be expected to be material to the Company;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets contains an exclusivity or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after clause that restricts the Effective Time, would apply to Parent or any business of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(viiiii) limits any mortgage, note, debenture, indenture, security agreement, guaranty, pledge or restricts the ability other agreement or instrument evidencing indebtedness for borrowed money or any guarantee of such indebtedness of the Company or any of its Subsidiaries to declare or pay dividends or make distributions Subsidiaries, in respect an amount in excess of their capital stock, partner interests, membership interests or other equity interests$50,000;
(viiiiv) is a any material partnershipjoint venture, partnership or limited liability company, joint venture company agreement or other similar agreement or arrangement Contract relating to the formation, creation, operation, management or control of any partnershipjoint venture, partnership or limited liability company company;
(v) any Contract expressly limiting or joint venture in which restricting the ability of the Company ownsor any of its Subsidiaries to make distributions or declare or pay dividends in respect of their capital stock, directly partnership interests, membership interests or indirectlyother equity interests, as the case may be;
(vi) any voting acquisition Contract that contains “earn out” or economic interest other contingent payment obligations, or remaining indemnity or similar obligations, that could reasonably be expected to result in payments after the date hereof by the Company or any of 15% or more and has invested or is contractually required to invest its Subsidiaries in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP50,000;
(ixvii) relates to the acquisition any settlement, conciliation or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) similar Contract pursuant to which the Company or any of its Subsidiaries has will have any liability in excess material outstanding obligations after the date of $100 million in this Agreement;
(viii) any transaction or series of related transactionsContract with any Governmental Entity;
(ix) any Labor Agreement;
(x) any Contract for the employment or engagement of any former (to the extent of any ongoing liability) or current director, officer, employee or individual independent contractor (A) is a material joint operating agreement (JOA) providing for annual compensation in excess of $100,000 or (B) defines that cannot be terminated upon thirty (30) days’ or less prior notice without further liability to the Company or any material area of mutual interest (AMI); orits Subsidiaries;
(xi) any Contract that relates to the licensing, distribution, development, purchase or sale of Company Owned IP or licensed Intellectual Property, including, without limitation, technology consulting agreements, coexistence agreements, consent agreements, joint development agreements, and nonassertion agreements (excluding non-exclusive, unmodified “off-the-shelf” software licensed to the Company for internal use purposes on generally standard terms or conditions involving consideration of less than $50,000, including purchase orders);
(xii) any active Contracts with Significant Customers with a value in excess of $500,000 or active Contracts with Significant Suppliers with a value in excess of $250,000;
(xiii) any Contract that obligates the Company or any Subsidiary for more than one (1) year, is a not terminable without penalty upon notice of ninety (90) days or less and has total projected revenue of at least $250,000;
(xiv) any Contract required to be set forth on Section 3.21(a)(xi) outside the ordinary course between the Company or any Subsidiary of the Company Disclosure Schedules.and any current or former Affiliate of the Company;
(bxv) Each such Contract described the Company Real Property Leases;
(xvi) any Contracts that require the Company to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions;
(xvii) any Contracts that provide for the indemnification by the Company of any person or the assumption of any Tax, environmental or other liability of any person; and
(xviii) any Contracts or arrangements containing a non-compete, non-solicitation or similar type of provision that limit or otherwise restrict the Company or any of its Subsidiaries or any of their respective Affiliates or any successor thereto, and that would reasonably be expected to, after the Effective Time, limit or restrict Parent or any of its Affiliates (including the Company and its Subsidiaries following the Closing) or any successor thereto, from (A) engaging or competing in any line of business or in any geographic area during any period, (B) making, selling or distributing any products or services, or using, transferring or distributing, or enforcing any of their respective rights with respect to, any of their respective material assets or properties, or (C) soliciting any employees, customers, suppliers or other persons. All contracts of the types referred to in clauses (i) through (xxvi) above is are referred to herein as a “Material Contract”. Each Material Contract is a valid and legally binding obligation of the Company and its Subsidiaries as applicable and, to the knowledge of the Company, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither Contracts.”
(i) Neither the Company nor any Subsidiary of its Subsidiaries, nor, the Company that is a party thereto is in breach of or default under the terms of any Company Material Contract; (ii) to the knowledge of the Company’s knowledge, any no other party to a any Company Material Contract is in breach of or violation default under the terms of any provision of, or in default under, any Company Material Contract, and no event has occurred that, with or without notice, notice or lapse of time time, or both, both would constitute such a breachmaterial breach of or material default under, violation or defaultgive rise to a right of termination, except for breaches, violations cancellation or defaults that would not, individually or in the aggregate, reasonably be expected to have a acceleration of any material obligation under any Company Material Adverse EffectContract; and (iii) each Company Material Contract is a valid and binding obligation of the Company or the Subsidiary of the Company that is party thereto and, to the Company’s knowledge, of each other party thereto, and is in full force and effect, subject to the Remedies Exceptions. A copy of each Company Material Contract has previously been delivered made available to Parent.
Appears in 2 contracts
Sources: Merger Agreement (Gulf Island Fabrication Inc), Merger Agreement (Gulf Island Fabrication Inc)
Material Contracts. (a) Except for this Agreement, Parent’s Benefit Plans and agreements filed as exhibits to the Parent SEC Documents, as of the date hereofof this Agreement, neither the Company nor none of Parent, Merger Sub, GP Merger Sub or any of its their Subsidiaries is a party to or bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) thatby:
(i) would be required to be filed by the Company as a any “material contract” (as such term is defined in item Item 601(b)(10) of Regulation S-K of the SEC);
(ii) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Company;
(iii) Contract that (A) limits in expressly imposes any material respect either restriction on the type right or ability of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after to compete with any other person or acquire or dispose of the Effective Time) may engage securities of any other person or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets contains an exclusivity or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after clause that restricts the Effective Time, would apply to business of Parent or any of its SubsidiariesSubsidiaries in a material manner;
(iii) any mortgage, including the Company and note, debenture, indenture, security agreement, guaranty, pledge or other agreement or instrument evidencing indebtedness for borrowed money or any guarantee of such indebtedness of Parent or any of its SubsidiariesSubsidiaries in an amount in excess of $200 million;
(iv) (A) is an indentureany joint venture, loan partnership or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture company agreement or other similar agreement or arrangement Contract relating to the formation, creation, operation, management or control of any partnershipjoint venture, partnership or limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 millioncompany, other than with respect to any wholly-owned Subsidiary of the Company such Contract solely between Parent and its Subsidiaries or wholly-owned Subsidiary of the MLPamong Parent’s Subsidiaries;
(ixv) relates to any Contract expressly limiting or restricting the acquisition or disposition ability of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company Parent or any of its Subsidiaries has to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, limited liability company interests or other equity interests, as the case may be;
(vi) any liability acquisition Contract that contains “earn out” or other contingent payment obligations, or remaining indemnity or similar obligations, that could reasonably be expected to result in payments after the date hereof by Parent or any of its Subsidiaries in excess of $100 million in any transaction or series of related transactions;200 million; and
(xvii) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is lease or sublease with respect to a Contract required to be set forth on Section 3.21(a)(xi) Parent Leased Real Property. All contracts of the Company Disclosure Schedules.
(b) Each such Contract described types referred to in clauses (i) through (xvii) above is are referred to herein as “Parent Material Contracts.”
(b) Except as would not have, individually or in the aggregate, a “Parent Material Adverse Effect, (i) neither Parent nor any Subsidiary of Parent is in breach of or default under the terms of any Parent Material Contract”. Each , (ii) no other party to any Parent Material Contract, to the knowledge of Parent, is in breach of or default under the terms of any Parent Material Contract and (iii) each Parent Material Contract is a valid and legally binding obligation of Parent or the Company and its Subsidiaries as applicable Subsidiary of Parent that is party thereto and, to the knowledge of the CompanyParent, of each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each caseeffect, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to a Material Contract is in breach or violation of any provision of, or in default under, any Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to ParentRemedies Exceptions.
Appears in 2 contracts
Sources: Merger Agreement (Energy Transfer LP), Merger Agreement (Enable Midstream Partners, LP)
Material Contracts. (a) Except for this AgreementOther than the Contracts, including amendments thereto, required to be filed as an exhibit to any report of Parent filed pursuant to the Exchange Act of the date hereoftype described in Item 601(b)(10) of Regulation S-K promulgated by the SEC, neither each of which was filed in an unredacted form, the Company nor Parent Disclosure Schedule sets forth a true and correct list of:
(i) each Contract to which Parent or any of its Subsidiaries is a party to or bound by that (A) expressly imposes any agreementmaterial restriction on the right or ability of Parent or any of its Subsidiaries to compete with any other Person, lease(B) contains any right of first refusal, easement, license, contract, note, mortgage, indenture right of first offer or other legally binding obligation similar term that materially restricts the right or ability of Parent or any of its Subsidiaries to acquire or dispose of the securities of another Person; or (“Contract”C) that:expressly imposes any material restriction on the right or ability of Parent or any of its Subsidiaries to engage or compete in any line of business or in any geographic area or that contains exclusivity or non-solicitation provisions (excluding customary employee non-solicitation provisions with customers and partners); or
(iii) each Contract to which Parent or any of its Subsidiaries is a party to or bound that was entered into not in the ordinary course of business and would purport to bind, or purport to be applicable to the conduct of, the Company or its Subsidiaries in any materially adverse respect (whether before or after the Effective Time). Contracts, including amendments thereto, required to be filed by as an exhibit to any report of Parent filed pursuant to the Company as a “material contract” (as such term is defined Exchange Act of the type described in item Item 601(b)(10) of Regulation S-K promulgated by the SEC, together with any Contracts of the SEC);
(ii) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any business which payment obligations are or would reasonably be expected to be material to the Company;
(iii) (A) limits in any material respect either the type of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions), (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts the ability of the Company or any of its Subsidiaries to declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, other than with respect to any wholly-owned Subsidiary of the Company or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) pursuant to which the Company or any of its Subsidiaries has any liability in excess of $100 million in any transaction or series of related transactions;
(x) (A) is a material joint operating agreement (JOA) or (B) defines any material area of mutual interest (AMI); or
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) of the Company Disclosure Schedules.
(b) Each such Contract described in clauses (i) through and (xii) above is above, are referred to herein as a “Parent Material ContractContracts”. Each .
(b) A true and correct copy of each Parent Material Contract has previously been made available to the Company and each such Contract is a valid and legally binding obligation agreement of the Company and Parent or its Subsidiaries as applicable Subsidiary party thereto and, to the knowledge Knowledge of the CompanyParent, each other party any counterparty thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effecteffect, and neither the Company nor any none of Parent or its Subsidiaries, Subsidiaries nor, to the knowledge Knowledge of the CompanyParent, any other party to a Material Contract thereto is in default or breach or violation in any respect under the terms of any provision of, or in default under, any such Parent Material Contract, and no event has occurred that, with or without notice, lapse of time or both, would constitute such a breach, violation or default, except for breaches, violations such default or defaults that breach as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Effect on Parent.
Appears in 2 contracts
Sources: Merger Agreement (S1 Corp /De/), Merger Agreement (Fundtech LTD)
Material Contracts. (a) Except for this Agreementcontracts reflected as exhibits to its reports and other documents required to be filed under the 1934 Act and the Securities Act of 1933 (the “1933 Act”) (collectively, the “SEC Reports”), including ICB’s Annual Report on Form 10-K for the year ended December 31, 2010, and Quarterly Report on Form 10-Q for the quarter ended September 30, 2011, or as set forth in the ICB Disclosure Schedule, as of the date hereofof this Agreement, neither the Company ICB nor any of its Subsidiaries Subsidiaries, nor any of their respective assets, businesses, or operations, is a party to to, or is bound by any agreementor affected by, leaseor receives benefits under, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) that:
(i) would be required any contract relating to be filed the borrowing of money by ICB or any of its Subsidiaries or the Company as a “material contract” (as such term is defined in item 601(b)(10) of Regulation S-K of the SEC);
(ii) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition guarantee by the Company ICB or any of its Subsidiaries of any business which payment obligations are such obligation (other than contracts pertaining to fully-secured repurchase agreements, and trade payables, and contracts relating to borrowings or would reasonably be expected to be material to guarantees made in the Company;
(iii) (A) limits in any material respect either the type ordinary course of business in which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisionsbusiness), (Bii) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries of such indebtedness of any person other than the Company or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset contract containing covenants that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;
(vii) limits or restricts limit the ability of the Company ICB or any of its Subsidiaries to declare compete in any line of business or pay dividends with any Person, or make distributions in respect of their capital stock, partner interests, membership interests to hire or other equity interests;
(viii) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating to engage the formation, creation, operation, management or control services of any partnershipPerson, limited liability company or joint venture that involve any restriction of the geographic area in which the Company ownswhich, directly or indirectlymethod by which, ICB or any voting or economic interest of 15% or more and has invested or is contractually required to invest in excess of $100 million, its Subsidiaries may carry on its business (other than as may be required by Law or any Governmental Authority) (as each are hereinafter defined), or any contract that requires it or any of its Subsidiaries to deal exclusively or on a “sole source” basis with another party to such contract with respect to the subject matter of such contract, (iii) any wholly-owned Subsidiary of the Company contract for, with respect to, or wholly-owned Subsidiary of the MLP;
(ix) relates to the acquisition that contemplates, a possible merger, consolidation, reorganization, recapitalization or disposition of any other business combination, or assets (other than the purchase and asset sale or sale of crude oil and products equity securities not in the ordinary course of business consistent with past practice, with respect to ICB or any of its Subsidiaries, (iv) pursuant any other contract or amendment thereto that would be required to be filed as an exhibit to any SEC Report (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the ▇▇▇▇ ▇▇▇) that has not been filed as an exhibit to or incorporated by reference in ICB’s SEC Reports filed prior to the date of this Agreement, (v) any lease of real or personal property providing for annual lease payments by or to ICB or its Subsidiaries in excess of $100,000 per annum other than financing leases entered into in the ordinary course of business in which the Company ICB or any of its Subsidiaries has is the lessor, or (vi) any liability contract that involves expenditures or receipts of ICB or any of its Subsidiaries in excess of $100 million 100,000 per year not entered into in the ordinary course of business consistent with past practice. The contracts of the type described in the preceding sentence, whether or not in effect as of the date of this Agreement, shall be deemed “Material Contracts” hereunder. With respect to each of ICB’s Material Contracts (i) that is reflected as an exhibit to any transaction SEC Report, (ii) would be required under Items 601(b)(4) and 601(b)(10) of Regulation S-K under the 1933 Act to be filed as an exhibit to any of its SEC Reports or series (iii) that is disclosed in the ICB Disclosure Schedule, or would be required to be so disclosed if in effect on the date of related transactions;
(x) this Agreement: (A) each such Material Contract is a material joint operating agreement (JOA) or in full force and effect; (B) defines neither ICB nor any of its Subsidiaries is in material default thereunder with respect to each Material Contract, as such term or concept is defined in each such Material Contract; (C) neither ICB nor any of its Subsidiaries has repudiated or waived any material area provision of mutual interest any such Material Contract; and (AMI); or
(xiD) is a no other party to any such Material Contract required is, to be set forth on Section 3.21(a)(xi) ICB’s knowledge, in material default in any material respect. True copies of all Material Contracts, including all amendments and supplements thereto, that are not filed as exhibits to SEC Reports are attached to the Company ICB Disclosure SchedulesSchedule.
(b) Each such Contract described in clauses (i) through (x) above is referred to herein as a “Material Contract”. Each Material Contract is a valid and legally binding obligation of the Company and its Subsidiaries as applicable and, to the knowledge of the Company, each other party thereto, and is in full force and effect and enforceable by the Company or the applicable Subsidiary, in each case, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect, and neither the Company Neither ICB nor any of its SubsidiariesSubsidiaries have entered into any interest rate swaps, norcaps, to the knowledge of the Companyfloors, any other party to a Material Contract is in breach or violation of any provision ofoption agreements, futures and forward contracts, or in default underother similar risk management arrangements, any Material Contract, and no event has occurred that, with whether entered into for ICB’s own account or without notice, lapse for the account of time one or both, would constitute such a breach, violation more of its Subsidiaries or default, except for breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy of each Material Contract has previously been delivered to Parenttheir respective customers.
Appears in 2 contracts
Sources: Merger Agreement (Indiana Community Bancorp), Merger Agreement (Old National Bancorp /In/)
Material Contracts. (ai) Except for this Agreement, Section 6.1(A)(t)(i) of the Company Disclosure Schedule sets forth a list as of the date hereof, neither of this Agreement of each Contract to which the Company nor or any of its Subsidiaries is a party to or by which it is bound by any agreement(each such Contract, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) that:
(i) would be required to be filed by the Company as a “material contract” (as such term is defined in item 601(b)(10) of Regulation S-K and each of the SEC);
following types of Contracts (iiother than any Company Benefit Plan) includes any continuing or other contingent payment obligations (including any “earn-out” or indemnification obligations) arising in connection with the acquisition or disposition by described below to which the Company or any of its Subsidiaries becomes a party or by which it otherwise becomes bound after the date of any business which payment obligations are or would reasonably be expected to be material to the Company;this Agreement, a “Company Material Contract”):
(iii) (A) limits each acquisition or divestiture Contract (including any Contracts pursuant to which any member of the Company Group has transferred or agreed to transfer ownership of any Intellectual Property) that (x) has a maximum potential value (or which otherwise requires the receipt or making of payments) in excess of $250,000 (including pursuant to any material respect either the type of business in “earn-out”, contingent value rights, milestone payments, license fees, royalty payments, development costs or other contingent payment or value obligations) and pursuant to which the Company or its Subsidiaries (has any current or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions)future obligations, (By) would require involves the disposition issuance of any material assets or line Equity Securities of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including the Company and its Subsidiaries;
(iv) (A) is an indenture, loan or credit Contract, loan note, mortgage Contract or other Contract representing, or any guarantee of, indebtedness for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by the Company or any of its Subsidiaries to a Third Party following the date of such indebtedness of this Agreement or (z) grants to any person Person (other than the Company or a wholly-owned Subsidiary any member of the Company in excess of $100 million;
(vGroup) grants (A) rights any right of first refusal, rights right of first negotiation or similar pre-emptive rightsnegotiation, right of first offer, option to purchase, option to license, or (B) puts, calls or any other similar rights, to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) rights with respect to any asset Company Product or any owned or exclusively licensed Company Intellectual Property;
(B) any Contract with any Governmental Entity that is material to the CompanyCompany and its Subsidiaries, taken as a whole, and involving or that would reasonably be expected to involve payments to or from any Governmental Entity in an amount having a maximum potential value in excess of $250,000;
(viC) was entered into any Contract that (x) limits or purports to settle limit, in any material litigation and which imposes material ongoing obligations on respect, the freedom of the Company or any of its Subsidiaries;
Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the freedom of Parent or any of its Affiliates to take such actions after the Effective Time, (viiy) limits contains exclusivity or restricts “most favored nation” obligations or (z) contains any other provisions materially restricting or purporting to materially restrict the ability of the Company or any of its Subsidiaries to declare sell, market, distribute, promote, manufacture, develop, commercialize, test or pay dividends research any Company Products through Third Parties, or make distributions in respect of their capital stockto solicit any potential customer, partner interests, membership interests supplier or other equity interestsbusiness relation in any material respect or that would so limit or purport to limit Parent or any of its Affiliates after the Effective Time;
(viiiD) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement any Contract relating to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company owns, directly or indirectly, any voting or economic interest of 15% or more and has invested or is contractually required to invest third-party indebtedness for borrowed money in excess of $100 million250,000 (whether incurred, other than with respect to assumed, guaranteed or secured by any wholly-owned Subsidiary asset) of the Company or wholly-owned Subsidiary any of the MLPits Subsidiaries;
(ixE) relates any Contract restricting the Company or any of its Subsidiaries from (x) the payment of dividends (y) the making of distributions to shareholders or (z) the ability to repurchase or redeem Equity Securities;
(F) any joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization, research, development or other similar agreement, which is material to the acquisition Company Group, taken as a whole;
(G) any collective bargaining agreements or disposition other agreements with any labor organization, labor union, or works council;
(H) any Contracts or other transactions with any (A) executive officer or director of the Company or (B) affiliate (as such term is defined in Rule 12b-2 promulgated under the Exchange Act) or “associates” (or members of any business of their “immediate family”) (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) of any such executive officer, director or assets beneficial owner;
(other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practiceI) any Contracts pursuant to which the Company or any of its Subsidiaries (A) receives any license (including any sublicense) to, or covenant not to be sued under, any Intellectual Property (other than non-exclusive licenses for generally commercially available off-the-shelf Software with annual payments of less than $250,000), (B) grants a Third Party any license (including any sublicense) to, or covenant not to sue under, any Intellectual Property or (C) has transferred or agreed to transfer ownership of any liability Owned Intellectual Property;
(J) any Contract involving the settlement of any Action or threatened Action (or series of related Actions) (A) which (x) will involve payments by the Company or any of its Subsidiaries after the date hereof, or involved such payments, in excess of $100 million in 250,000 or (y) will impose, or imposed, materially burdensome monitoring or reporting obligations by the Company or any transaction of its Subsidiaries outside the ordinary course of business or series material restrictions on the Company or any Subsidiary of related transactions;
the Company (x) (A) is a material joint operating agreement (JOAor, following the Completion, on Parent or any Subsidiary of Parent) or (B) defines which impose material restrictions on the use of any material area of mutual interest (AMI); orIntellectual Property;
(xiK) is a any stockholders, investors rights, registration rights or similar agreements or arrangements with respect to the Company or any of its Subsidiaries; and
(L) any other Contract required to be set forth on Section 3.21(a)(xifiled by the Company pursuant to Item 601(b)(10) of Regulation S-K.
(ii) All of the Company Disclosure Schedules.
Material Contracts are, subject to the Equitable Exceptions, (bA) Each such Contract described in clauses (i) through (x) above is referred to herein as a “Material Contract”. Each Material Contract is a valid and legally binding obligation obligations of the Company and its Subsidiaries or a Subsidiary of the Company (as applicable the case may be) and, to the knowledge of the Company, each of the other party thereto, parties thereto and is (B) in full force and effect and enforceable in accordance with their respective terms against the Company or its Subsidiaries (as the case may be) and, to the knowledge of the Company, each of the other parties thereto, in the case of (A), except for such Company Material Contracts that are terminated after the date of this Agreement in accordance with their respective terms, other than as a result of a default or breach by the Company or any of its Subsidiaries of any of the applicable Subsidiaryprovisions thereof, and except where the failure to be valid and binding obligations and in each case, subject full force and effect and enforceable has not had and would not reasonably be expected to Creditors’ Rights, except as would nothave, individually or in the aggregate, be reasonably likely an effect that is material to have the Company Group, taken as a whole. To the knowledge of the Company, as of the date hereof, no Person is seeking to terminate or challenging the validity or enforceability of any Company Material Adverse EffectContract, except such terminations or challenges which have not had and neither would not reasonably be expected to have, individually or in the aggregate, an effect that is material to the Company Group, taken as a whole. Neither the Company nor any of its Subsidiaries, nor, as of the date hereof, to the knowledge of the Company, any of the other party to a Material Contract is in breach or violation of parties thereto has violated any provision of, or in default under, committed or failed to perform any Material Contract, and no event has occurred that, act which (with or without notice, lapse of time or both, ) would constitute such a breachmaterial default under any provision of, violation and as of the date hereof neither the Company nor any of its Subsidiaries has received written notice that it has violated or defaultdefaulted under, any Company Material Contract, except for breaches, those violations or and defaults that which have not had and would notnot reasonably be expected to have, individually or in the aggregate, reasonably be expected an effect that is material to have the Company Group, taken as a whole. The Company has made available to Parent true and complete copies of each Company Material Adverse Effect. A copy Contract as in effect as of each Material Contract has previously been delivered to Parentthe date hereof.
Appears in 2 contracts
Sources: Transaction Agreement (Avadel Pharmaceuticals PLC), Transaction Agreement (Alkermes Plc.)
Material Contracts. (a) Except for For all purposes of and under this Agreement, as a “Material Contract” shall mean any of the date hereof, neither following to which the Company nor or any of its Subsidiaries is a party to or by which any assets of the Company or any of its Subsidiaries are bound by any agreement, lease, easement, license, contract, note, mortgage, indenture or other legally binding obligation (“Contract”) thatas of the date of this Agreement:
(i) would be required to be filed by the Company as a any “material contract” (as such term is defined in item Item 601(b)(10) of Regulation S-K of the SEC);
(ii) includes any continuing Contract that contains any currently active material covenant by the Company or any of its Subsidiaries (A) to not engage in any line of business or to not engage in its business in any geographic location, (B) limiting the right of the Company or any of its Subsidiaries to compete with any Person, (C) granting by the Company or its Subsidiaries any exclusive distribution rights or any exclusive licensing rights to material Company Intellectual Property Rights, or (D) providing any third parties with “most favored nations” rights or rights of first offer or rights of first refusal for any Company Products, in each case other contingent payment obligations than as would not materially impair or restrict the ability of the Company or its Subsidiaries (including or, after the Closing, Parent and its Subsidiaries) to operate their businesses;
(iii) any “earn-out” Contract relating to the disposition or indemnification obligations) arising in connection with the acquisition or disposition by the Company or any of its Subsidiaries of any Person or other business enterprise (whether by merger, sale of stock, sale of assets or otherwise) which payment has any obligations which have not been satisfied or performed that are or would reasonably be expected to be material to the CompanyCompany and its Subsidiaries, taken as a whole;
(iiiiv) (A) limits in any material respect either the type of business in Contract pursuant to which the Company or its Subsidiaries (or in which Parent or any of its Subsidiaries after the Effective Time) may engage or the manner or locations in which any of them may so engage in any business (including through “non-competition” or “exclusivity” provisions)Company, (B) would require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Subsidiaries or (C) grants “most favored nation” status with respect to any material obligations that, after the Effective Time, would apply to Parent or any of its Subsidiaries, including or any other party thereto has material continuing obligations, rights or interests relating to the Company and its Subsidiaries;
(iv) (A) is an indentureresearch, loan development, clinical trial, distribution, supply, manufacture, marketing or credit Contract, loan note, mortgage Contract or other Contract representingco-promotion of, or collaboration with respect to, any guarantee of, indebtedness Company Product or product candidate for borrowed money of the Company or any Subsidiary of the Company in excess of $100 million or (B) is a guarantee by which the Company or any of its Subsidiaries of such indebtedness of any person other than the Company is currently engaged in research or a wholly-owned Subsidiary of the Company in excess of $100 million;
(v) grants development, excluding (A) rights of first refusalstudy agreements with clinical trial sites, rights of first negotiation or similar pre-emptive rights, or (B) putsnon-disclosure agreements, calls (C) Contracts with contractors or similar rights, vendors providing products or services to any person (other than the Company, a wholly-owned Subsidiary of the Company or a wholly-owned Subsidiary of the MLP) with respect to any asset that is material to the Company;
(vi) was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries, and (D) customary material transfer Contracts;
(viiA) limits any Contract providing for indemnification or restricts guarantee of the ability obligations of any other Person that would be material to the Company and its Subsidiaries, taken as a whole, other than (x) any such Contracts entered into in the ordinary course of business consistent with past practice (including (1) study agreements with clinical trial sites and (2) Contracts with contractors or vendors providing products or services to the Company or any of its Subsidiaries to declare Subsidiaries), or pay dividends (y) any Contracts the disclosure of which is required by another subsection of this Section 4.12(a) or make distributions in respect of their capital stock(B) any guaranty, partner interests, membership interests or other equity intereststhan any guaranties among the Company and its wholly owned Subsidiaries;
(viiivi) is a material partnership, limited liability company, joint venture or other similar agreement or arrangement relating any Contract that relates to the formation, creation, operation, management or control of any partnership, limited liability company legal partnership or any joint venture entity pursuant to which the Company has an obligation (contingent or otherwise) to make a material investment in or material extension of credit to any Person, or in which the Company owns, directly or indirectly, any owns more than a ten percent (10%) voting or economic interest of 15% or more and has invested or is contractually required to invest interest, in each case with a carrying value on the Company Balance Sheet in excess of $100 million1,000,000;
(vii) any Contract that involves or relates to indebtedness for borrowed money or the deferred purchase of property having an outstanding principal amount in excess of $1,000,000 (whether incurred, assumed, guaranteed or secured by any asset);
(viii) any Lease of Leased Real Property and any Contract for the purchase, sale, or future lease, sublease, license, sublicense or other than with respect to any wholly-owned Subsidiary use of the Company or wholly-owned Subsidiary of the MLPreal property;
(ix) relates to the acquisition any Contract that contains a put, call or disposition of any business or assets (other than the purchase and sale of crude oil and products in the ordinary course of business consistent with past practice) similar right pursuant to which the Company or any of its Subsidiaries has could be required to purchase or sell, as applicable, any liability in excess equity interests of any Person or assets that have a fair market value or purchase price of at least $100 million in any transaction or series of related transactions1,000,000;
(x) any Contract for the purchase of materials, supplies, goods, services, equipment or other assets that is not terminable without material penalty on 90 days written notice by the Company or its Subsidiaries which provides for or is reasonably likely to require either (A) is a material joint operating agreement (JOA) annual payments by the Company and its Subsidiaries of $1,000,000 or more or (B) defines aggregate payments by the Company and its Subsidiaries of $1,000,000 or more; and any material area Contracts the disclosure of mutual interest which is required by another subsection of this Section 4.12(a) (AMIit being understood that for purposes of calculating the amount of any such payments with respect to any master services agreements, only payments under currently active purchase orders shall be included in such calculation); or;
(xi) is a Contract required to be set forth on Section 3.21(a)(xi) of the any Company Disclosure Schedules.IP Contracts; and
(bxii) Each such Contract described in any Contract, or group of Contracts with a Person (or group of affiliated Persons), the termination or breach of which would have a Company Material Adverse Effect and is not disclosed pursuant to clauses (i) through (xxi) above above.
(b) Section 4.12(b) of the Company Disclosure Letter contains a complete and accurate list of all Material Contracts to or by which the Company or any of its Subsidiaries is referred a party as of the date of this Agreement. True and complete copies of all such Material Contracts (including all exhibits and schedules thereto, but excluding any purchase orders issued under master service agreements) have been (i) publicly filed with the SEC or (ii) made available to herein as a “Material Contract”. Parent.
(c) Each Material Contract is a valid and legally binding obligation on the Company (and/or each such Subsidiary of the Company and its Subsidiaries as applicable party thereto) and, to the knowledge Knowledge of the Company, each other party thereto, and is in full force and effect and effect, enforceable by against the Company or each such Subsidiary of the applicable SubsidiaryCompany party thereto, as the case may be, in each caseaccordance with its terms, subject to Creditors’ Rights, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse EffectEnforceability Limitations, and neither the Company nor any of its SubsidiariesSubsidiaries that is a party thereto, nor, to the knowledge Knowledge of the Company, any other party to a Material Contract thereto, is in breach or violation of any provision of, or in default under, any such Material Contract, and no event has occurred that, that with notice or without notice, lapse of time or both, both would constitute such a breachbreach or default thereunder by the Company or any of its Subsidiaries, violation or defaultor, to the Knowledge of the Company, any other party thereto, except for breaches, violations or such failures to be in full force and effect and such breaches and defaults that would notnot have, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. A copy As of each the date of this Agreement, the Company has not received notice from any other party to any Material Contract has previously been delivered that such third party intends to Parentterminate any Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Otsuka Holdings Co., Ltd.), Merger Agreement (Astex Pharmaceuticals, Inc)