Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto): (i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries; (ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000; (iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000; (iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts); (v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing; (vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement; (vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000; (viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person; (ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule; (x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property; (xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation; (xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and (xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand; (xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment); (xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year; (xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and (xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice. (i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).
Appears in 8 contracts
Sources: Merger Agreement (Lewis & Clark Ventures I, LP), Merger Agreement (Sagrera Ricardo A.), Merger Agreement (RiverRoad Capital Partners, LLC)
Material Contracts. (a) Section 3.13(aSchedule 3.12(a) sets forth a true, correct and complete list of the following Contractual Obligations (including every written amendment, modification or supplement to the foregoing or other material amendment, modification or supplement to the foregoing that is binding on the Company or any of its Subsidiaries) to which the Company or any of its Subsidiaries is a party: (i) any Contractual Obligation that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Commission), (ii) Contractual Obligations that collectively represent the top 5 agreements (based on cost) with content licensors for the Company and its Subsidiaries during the Company’s last fiscal year, (iii) Contractual Obligations that collectively represent the top 5 agreements (based on revenue) for distribution services and cooperation agreements of the Company Disclosure Schedule contains and its Subsidiaries during the Company’s last fiscal year, (iv) any Contractual Obligation (other than a listing Contractual Obligation described in one of all Contracts described the other provisions of this Section 3.12(a) without regard to any threshold contained therein) that involves annual expenditures during the Company’s last fiscal year by the Company or any Company Subsidiary in excess of $200,000 and is not otherwise cancelable by the Company or any of its Subsidiaries without any financial or other penalty on 90-days’ or less notice, (v) any Lease for real property or (vi) any other Contractual Obligation that is material to the Company or its Subsidiaries (each Contractual Obligation referenced above in clauses (i) through (xiiivi) below individually, a “Material Contract” and collectively, “Material Contracts”); provided that, with respect to whichCompany Material Contracts described above, as of such list shall identify the date of this Agreementsuch contract and any communications (written or, to the knowledge of the Company, oral) received by the Company or its Subsidiaries is a from any party to such contract or by which they are boundon behalf of any such party that such party intends to cancel, other than a Company Benefit Planterminate, and that are not expired seek re-bidding of or have not been terminated and not including any Contracts pursuant fail to which renew such contract. Except as set forth on Schedule 3.12(a), the Company has with no material outstanding delivered or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). Truemade available true, correct and complete copies of the Contracts listed on Section 3.13(aall such Contractual Obligations to counsel to Purchaser.
(b) All of the Material Contracts are valid, binding and in full force and effect in all material respects and enforceable by the Company Disclosure Schedule have previously been made available in accordance with their respective terms in all material respects, subject to Parent Equitable Principles. The Company is not in material default or breach under any of its agents Contractual Obligations or representativesorganizational documents and, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money the knowledge of the Company, no other party to any of its Contractual Obligations is in material default or breach thereunder (and no event has occurred which with the passage of time or the giving of notice or both would result in a material default or breach by the Company or its Subsidiaries or or, to the placing of a Lien (other than a Permitted Lien) on any material assets or properties knowledge of the Company or its Subsidiaries;
(ii) Company, by any Contract under which other party thereunder). Except as set forth on Schedule 3.12(b), neither the Company or nor any of its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third a party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or non-competition agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company obligation that materially limits or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of materially limit the Company or any of its Subsidiaries to make from engaging in any payment or incur line of business in any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeterritory.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).
Appears in 8 contracts
Sources: Securities Purchase Agreement (Seven Stars Cloud Group, Inc.), Securities Purchase Agreement (Wecast Network, Inc.), Securities Purchase Agreement (Wecast Network, Inc.)
Material Contracts. (a) Except for this Agreement, Section 3.13(a) 5.19 of the Company WTW Disclosure Schedule Letter contains a listing of all Contracts described in clauses (i) through (xiii) below to whichcomplete and correct list, as of the date of this Agreement, the Company of each Contract described below in this Section 5.19(a) under which WTW or its Subsidiaries is a party any WTW Subsidiary has any current or by which they are boundfuture rights, other than a Company Benefit Planresponsibilities, and that are not expired obligations or have not been terminated and not including any Contracts pursuant liabilities (in each case, whether contingent or otherwise) or to which the Company has with no material outstanding any of their respective properties or executory obligations or Liabilities (such Contracts assets is subject, in each case as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, date of this Agreement (all Contracts of the type described in this Section 5.19(a) being referred to herein as the “WTW Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any partnership, joint venture, strategic alliance or collaboration Contract relating which is material to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or WTW and its Subsidiaries, taken as a whole;
(ii) any Contract under which that (A) purports to materially limit (1) the Company or material lines of business of WTW and its Subsidiaries is lessee (or, after the Effective Time, Aon and its Subsidiaries) or (2) the geographic area in which any of them may so engage in such business or holds (B) would require the disposition of any material assets or operatesmaterial line of business of WTW and its Subsidiaries (or, in each caseafter the Effective Time, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which Aon and its Subsidiaries taken as a whole) as a result of the aggregate annual rental payments do not exceed $500,000consummation of the Transactions;
(iii) any each acquisition or divestiture Contract under which 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 Company receipt or its Subsidiaries is lessor making of or permits any third party to hold or operate, future payments in each case, any tangible property excess of $50 million in the twelve (other than real property), owned or controlled by 12) month period following the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000date hereof;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected Contract relating to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company outstanding Indebtedness of WTW or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent for borrowed money or any of its Affiliates after the Closingfinancial guaranty thereof (whether incurred, (Bassumed, guaranteed or secured by any asset) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or 50 million other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person than (A) pursuant to which the Company Contracts solely among WTW and any wholly-owned WTW Subsidiary or its Subsidiaries (or Parent a guarantee by WTW or any WTW Subsidiary of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreementa WTW Subsidiary, (B) financial guarantees entered into in the ordinary course of business consistent with a Governmental Authority 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) that imposes any material, non-monetary obligations on Contracts relating to Indebtedness explicitly included in the Company or its Subsidiaries (or Parent or any of its Affiliates after consolidated financial statements in the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other handWTW SEC Documents;
(xivv) any each Contract with the Company or its Subsidiaries(other than a WTW Benefit Plan) between WTW, on the one hand, and any officer, director, manager, stockholder, member director or Affiliate (other than a wholly-owned WTW Subsidiary) of an Affiliate of the Company or its Subsidiaries WTW or any of their respective Affiliates “associates” or “immediate family” members (excluding employee confidentiality as such terms are defined in Rule 12b-2 and invention assignment agreementsRule 16a-1 of the Exchange Act), equity on the other hand, including any Contract (other than a WTW Benefit Plan) pursuant to which WTW has an obligation to indemnify such officer, director, Affiliate or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment)family member;
(xvvi) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments (excluding licenses for commercially available computer software that are generally available on standard terms for fees of no more than $500,000 per year25 million annually or in the aggregate) under which WTW or any WTW 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 WTW and WTW Subsidiaries, taken as a whole;
(xvivii) any employment 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 consulting in the aggregate) under which WTW or any WTW 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 with severanceis material to WTW and WTW Subsidiaries, change in controltaken as a whole;
(viii) any shareholders, retention investors rights, registration rights or similar arrangements, that will result in any obligation (absolute agreement or contingent) arrangement of the Company WTW or any of its Subsidiaries Significant Subsidiaries;
(ix) any Contract that relates to make any payment swap, forward, futures, or incur other similar derivative transaction for hedging purposes with a notional value in excess of $100 million;
(x) any Liability as a result material collective bargaining agreement or other material 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 consummation date hereof of consideration in excess of $25 million or (B) impose material monitoring or reporting obligations to any other Person outside the transactions contemplated by this Agreement, termination ordinary course of employment or bothbusiness; and
(xviixii) any Contract not otherwise described in any other Contract the performance subsection of which requires either this Section 5.19(a) that would be required to be filed by WTW as a “material contract” (Aas such term is defined in Item 601(b)(10) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life Regulation S-K of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeSEC).
(ib) Each Neither WTW nor any WTW Subsidiary is in breach of or default under the terms of any WTW Material Contract where such breach or default would reasonably be expected to have, individually or in the aggregate, a WTW Material Adverse Effect. To the knowledge of WTW, as of the date hereof, no other party to any WTW Material Contract is in breach of or default under the terms of any WTW Material Contract where such breach or default would reasonably be expected to have, individually or in the aggregate, a WTW Material Adverse Effect. Except as would not reasonably be expected to have, individually or in the aggregate, a WTW Material Adverse Effect, each WTW Material Contract is a valid and binding on the Company obligation of WTW or its Subsidiaries, as applicableWTW Subsidiary which is party thereto and, to the Company’s Knowledgeknowledge of WTW, the counterparties of each other party thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries andeffect, to the Company’s Knowledge, the counterparties thereto except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, examinership, fraudulent transfer, reorganization, moratorium or other Laws affecting generally the enforcement of similar Laws, now or hereafter in effect, relating to creditors’ rights generally and subject to general principles of equity), (ii) the Company or its Subsidiaries and, equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as discretion of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain court before which any material executory or continuing terms, conditions, obligations or rights)proceeding therefor may be brought.
Appears in 5 contracts
Sources: Business Combination Agreement, Business Combination Agreement (Aon PLC), Business Combination Agreement (Willis Towers Watson PLC)
Material Contracts. (a) Section 3.13(a) Schedule 4.19 of the Company Disclosure Schedule contains Letter, together with the lists of exhibits contained in the Company SEC Documents, sets forth a listing of all Contracts described in clauses (i) through (xiii) below to whichtrue and complete list, as of the date of this Agreement, of:
(i) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Company Exchange Act);
(ii) each Contract that provides for the acquisition, disposition, license, use, distribution or its Subsidiaries is a party outsourcing of assets, services, rights or by which they are bound, properties (other than a Company Benefit Plan, Oil and that are not expired or have not been terminated and not including any Contracts pursuant Gas Properties) with respect to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of reasonably expects that the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies its Subsidiaries will make annual payments in excess of the Contracts listed on Section 3.13(a) $100,000 or aggregate payments in excess of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):$1,000,000;
(iiii) any each Contract relating to (A) for Indebtedness for borrowed money or the deferred purchase price of property by the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or to secured by any asset) or (B) that creates a capitalized lease obligation, except, in the placing cases of a Lien clauses (A) and (B) with an aggregate principal amount not in excess of $200,000, and other than a Permitted Lien) on any material assets agreements solely between or properties of among the Company or and its Subsidiaries;
(iiiv) any each Contract under to which the Company or any Subsidiary of the Company is a party that (A) restricts the ability of the Company or any Subsidiary of the Company to compete in any business or with any Person in any geographical area, (B) requires the Company or any Subsidiary of the Company to conduct any business on a “most favored nations” basis with any third party or (C) provides for “exclusivity” or any similar requirement in favor of any third party, except in the case of each of clauses (A), (B) and (C) for such restrictions, requirements and provisions that are not material to the Company and its Subsidiaries;
(v) any Contract providing for the purchase or sale by the Company or any of its Subsidiaries is lessee of Hydrocarbons that (A) has a remaining term of greater than sixty (60) days and does not allow the Company or holds such Subsidiary to terminate it without penalty on sixty (60) days’ notice or operatesless, (B) contains a minimum throughput commitment, minimum volume commitment, “take-or-pay” clause or any similar material prepayment or forward sale arrangement or obligation (excluding “gas balancing” arrangements associated with customary joint operating agreements) to deliver Hydrocarbons at some future time or (C) contains acreage dedication, minimum volume commitments or capacity reservation fees to a gathering, transportation or other arrangement downstream of the wellhead that, in each case, cover, guaranty, dedicate or commit (I) more than 1,000 net acres or (II) volumes in excess of 10,000 MMcf of gas or 2,000 boe of liquid Hydrocarbons on a monthly basis (calculated on a yearly average basis);
(vi) any tangible property acquisition or divestiture Contract that contains “earn out” or other similar contingent payment obligations (other than real propertyasset retirement obligations, plugging and abandonment obligations and other reserves of the Company set forth in the Company Reserve Report), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or that would reasonably be expected to require result in annual payments in excess of $100,000;
(based on vii) each Contract for lease of personal property or real property (other than Oil and Gas Properties) involving payments in excess of $100,000 in any occurrence, development, activity calendar year or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract that are not terminable without penalty or (B) other Contract with respect liability to material the Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any ongoing obligation pursuant to such Contract that is not caused by any such termination) within sixty (A60) limits or purports to limitdays, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant Contracts related to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000drilling rigs;
(viii) any each Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for that could require the disposition of any portion of the material assets or line of business of the Company or its Subsidiaries or for (or, after the acquisition by the Company Effective Time, Parent or its Subsidiaries Subsidiaries);
(ix) each Contract involving the pending acquisition or sale of (or option to purchase or sell) any material amount of the assets or business properties of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (including any Oil and Gas Properties), taken as a whole, other than Contracts involving the acquisition or Parent sale of (or option to purchase or sell) Hydrocarbons in the ordinary course of business;
(x) each ISDA Master Agreement for any Derivative Transaction;
(xi) each material partnership, joint venture or limited liability company agreement, other than any customary joint operating agreements or unit agreements affecting the Oil and Gas Properties of its Affiliates after the Closing)Company; and
(xiiixii) each collective bargaining joint development agreement, exploration agreement, participation, farmout, farmin or program agreement or other similar Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of requiring the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreementexpenditures from and after January 1, termination of employment or both; and
(xvii) any other Contract the performance of which requires 2020 that either (A) annual payments would reasonably be expected to or from the Company or its Subsidiaries be in excess of $300,000 or 1,000,000 in the aggregate, (B) aggregate payments is material to the operation of the Company and its Subsidiaries, taken as a whole, or from (C) contains an area of mutual interest or any “tag along” or “drag along” (or similar rights) allowing a third party, or requiring the Company or any of its Subsidiaries Subsidiaries, to participate in excess of $1,500,000 over the life any future transactions with respect to any assets or properties of the agreement andCompany and its Subsidiaries, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less other than thirty (30) days’ prior written noticecustomary joint operating agreements and continuous development obligations under Oil and Gas Leases.
(ib) Each Collectively, the Contracts that are required to be set forth in Section 4.19(a) are herein referred to as the “Company Contracts.” A complete and correct copy of each of the Company Contracts has been made available to Parent. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is valid legal, valid, binding and binding enforceable in accordance with its terms on the Company or and each of its Subsidiaries, as applicableSubsidiaries that is a party thereto and, to the knowledge of the Company’s Knowledge, the counterparties each other party thereto, and is in full force and effect and enforceable effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in accordance with its terms against the aggregate, a Company Material Adverse Effect, neither the Company or nor any of its Subsidiaries andis in breach or default under any Company Contract nor, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement knowledge of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not is any other party to any such Company Contract in material breach of, or default underthereunder, any Material Contract and (iii) no event has occurred that (with or without due notice or the lapse of time or both) the giving of notice or both would result in constitute a material breach of, or default under, any Material Contract thereunder by the Company or its Subsidiaries Subsidiaries, or, to the knowledge of the Company’s Knowledge, the counterparties any other party thereto. The Company has made available There are no disputes pending or, to Parent true and complete copies of all Material Contracts in effect as the knowledge of the date hereof (Company, threatened with respect to any Company Contract and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other than purchase ordersparty to any Company Contract to terminate for default, invoicesconvenience or otherwise any Company Contract, and similar confirmatory or administrative documents that are ancillary nor to the main contractual relationship between knowledge of the parties Company, is any such party threatening to a particular Contract or group of Contracts and thatdo so, in each casecase except as has not had or would not reasonably be expected to have, do not contain any material executory individually or continuing termsin the aggregate, conditions, obligations or rights)a Company Material Adverse Effect.
Appears in 4 contracts
Sources: Merger Agreement (Bonanza Creek Energy, Inc.), Transaction Support Agreement (HighPoint Resources Corp), Transaction Support Agreement (Bonanza Creek Energy, Inc.)
Material Contracts. (a) Section 3.13(a) Schedule 3.24 delivered to HNWC by AMCON prior to the execution of the Company Disclosure Schedule contains a listing of this Agreement lists all Contracts described in clauses (i) through (xiii) below material contracts and agreements to which, as of the date of this Agreementhereof, the Company AMCON or its Subsidiaries any AMCON Subsidiary is a party or by which they are boundAMCON or any AMCON Subsidiary is bound or under which AMCON or any AMCON Subsidiary has or may acquire any rights, other than a Company Benefit Planwhich were not filed prior to the date hereof as exhibits to AMCON SEC Documents, and that are not expired which involve or have not been terminated and not including any Contracts pursuant relate to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) obligations of AMCON or any Contract relating to Indebtedness AMCON Subsidiary for borrowed money or other indebtedness where the amount of such obligations exceeds $6,000,000 individually, (ii) the Company lease by AMCON or its Subsidiaries any AMCON Subsidiary, as lessee or to lessor, of real property for rent of more than $6,000,000 per annum, (iii) the placing purchase or sale of a Lien goods (other than a Permitted Lienraw material to be purchased by AMCON on terms that are customary and consistent with the past practice of AMCON and in amounts and at prices substantially consistent with past practices of AMCON) on any material assets or properties services with an aggregate minimum purchase price of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operatesmore than $6,000,000 per annum, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) rights to manufacture and/or distribute any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, product which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from accounted for more than $45,000,000 of the Company or consolidated revenues of AMCON and its Subsidiaries during the fiscal year ended September 30, 2000 or under which AMCON or any AMCON Subsidiary received or paid license or other fees in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than during any Non-Scheduled Contracts);
year, (v) the purchase or sale of assets or properties not in the ordinary course of business having a purchase price in excess of $6,000,000, (vi) the right (whether or not currently exercisable) to use, license (including any Contract that "in-license" or "outlicense"), sublicense or otherwise exploit any intellectual property right or other proprietary asset of AMCON or of any of Subsidiary of AMCON or any other Person which, is material to AMCON; (vii) any material collaboration or joint venture or similar arrangement; (viii) the restriction on the right or ability of AMCON or any Subsidiary of AMCON (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closingother Person, (B) contains to acquire any exclusivityproduct or other asset or any services from any other Person, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting to solicit, hire or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of retain any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiaryas an employee, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xviD) to develop, sell, supply, distribute, offer, support or service any product or any technology or other asset to or for any other Person, (E) to perform services for any other Person, or (F) to transact business or deal in any other manner with any other Person; (ix) any employment currency hedging; or consulting Contract with severance, change in control, retention (x) individual capital expenditures or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries commitments in excess of $300,000 6,000,000. All such contracts and agreements are duly and validly executed by AMCON or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties theretosuch AMCON Subsidiary, and is are in full force and effect and enforceable in accordance with its terms against the Company or all material respects. Neither AMCON nor any of its Subsidiaries has violated or breached, or committed any default under, any contract or agreement, and, to the Company’s Knowledgeknowledge of AMCON, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium no other Person has violated or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach ofbreached, or committed any default under, any contract or agreement, which violation, breach or default (alone or in combination with other violations, breaches or defaults under such contract or agreement or under other contracts or agreements) has had or may reasonably be expected to have an AMCON Material Contract and (iii) no Adverse Effect. No event has occurred that (with or without due which, after notice or lapse the passage of time or both, would constitute a default by AMCON or any Subsidiary of AMCON under any contract or agreement or give any Person the right to (A) would result declare a default or exercise any remedy under any contract or agreement, (B) receive or require a rebate, chargeback, penalty or change in a material breach ofdelivery schedule under any contract or agreement, (C) accelerate the maturity or performance of any contract or agreement, or default under(D) cancel, terminate or modify any Material Contract by the Company contract or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and thatagreement, in each casecase which, do not contain any together with all other events of the types referred to in clauses (A), (B), (C) and (D) of this sentence has had or may reasonably be expected to have an AMCON Material Adverse Effect. All such contracts and agreements will continue, after the Effective Time, to be binding in all material executory or continuing terms, conditions, obligations or rights)respects in accordance with their respective terms until their respective expiration dates.
Appears in 4 contracts
Sources: Agreement and Plan of Merger (Hawaiian Natural Water Co Inc), Merger Agreement (Amcon Distributing Co), Merger Agreement (Hawaiian Natural Water Co Inc)
Material Contracts. (a) Section 3.13(a3.14(a) of the Company Seller Disclosure Schedule contains a listing lists the following types of all Contracts described in clauses (i) through (xiii) below contracts and agreements to whichwhich the Seller, as of the date of this Agreementany Company, the any Subsidiary or any Group Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant relate primarily to which the Company has with no material outstanding or executory obligations or Liabilities Business (such Contracts contracts and agreements as are required to be set forth on in Section 3.13(a3.14(a) of the Seller Disclosure Schedule and the Company Disclosure Schedule, IP Agreements being the “Material Seller Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract each “material contract” (as such term is used in Form 20-F of the SEC) relating to Indebtedness for borrowed money of the Companies, the Subsidiaries, the Group Companies, or the Business, or any such contract to which any Company, any Subsidiary or any Group Company or its Subsidiaries or to the placing of is a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiariesparty;
(ii) all contracts and agreements pursuant to which control is exercised by the Seller, the Companies or the Subsidiaries over any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000Group Company;
(iii) all contracts and agreements between any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each caseCompany, any tangible property Subsidiary or any Group Company, on the one hand, and the Seller or any of its Affiliates (other than real propertyany Company, any Subsidiary or any Group Company), owned or controlled by on the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000other hand;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contractall contracts and agreements that limit, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports purport to limit, in the ability of any material respectCompany, the freedom of the any Subsidiary or any Group Company to compete or its Subsidiaries to engage or compete in any line of business or with any Person person or entity or in any geographic area or that would so limit during any period of time;
(v) all contracts and agreements providing for an interest rate, currency or purport commodity swap, derivative, hedge, forward purchase or sale or other transaction similar in nature or effect to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closingoff-balance sheet financing;
(vi) any Contract requiring any all contracts and agreements for capital expenditures or the acquisition or construction of fixed assets which requires aggregate future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount payments in excess of (A) $300,000 annually or (B) $1,000,000 over 500,000 other than contracts and agreements for which the life of the agreementpayments to be made thereunder are currently accounted for in Seller’s capital budget;
(vii) all joint venture contracts, partnership arrangements or other agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by the Company, any Contract requiring the Subsidiary or any Group Company or its Subsidiaries to guarantee the Liabilities of with any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000third party;
(viii) all contracts and agreements for pending acquisitions of capital stock or assets of another Person (whether by merger or stock or asset purchase);
(ix) all contracts and agreements (including any Contract so-called take or pay or keep well agreements) under which the any Company, any Subsidiary, or any Group Company or its Subsidiaries has, has directly or indirectly, made indirectly guaranteed or otherwise agreed to make be responsible for Indebtedness, Liabilities or obligations of another Person;
(x) any loancontract or agreement (other than contracts of the type described in subclauses (i) through (ix) above) that involves aggregate future payments by or to any Company, advanceany Subsidiary, or assignment any Group Company in excess of payment $1,000,000 per annum, other than a purchase or sales order or other contract entered into in the ordinary course of business consistent with past practice; and
(xi) all other contracts and agreements that relate primarily to any Person outside the Business and are material to the Companies, the Subsidiaries and the Group Companies, taken as a whole, or the absence of the Ordinary Course of Business orwhich could reasonably be expected, individually or in the aggregate, to have a Seller Material Adverse Effect.
(b) Except as could not reasonably be expected, individually or in an amount in excess of $200,000 or made any capital contribution tothe aggregate, or other investment into have a Seller Material Adverse Effect:
(i) each Material Seller Contract is a legal, any Personvalid and binding agreement;
(ixii) any Contract required to be disclosed on Section 3.19 none of the Company Disclosure ScheduleSeller, the Companies, the Subsidiaries or the Group Companies has received any written claim of material default under any Material Seller Contract and none of the Seller, the Companies, the Subsidiaries or the Group Companies is in material breach or violation of, or material default under, any Material Seller Contract;
(xiii) any Contract with any Person (A) pursuant to which the Company Seller’s Knowledge, no other party is in material breach or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business)violation of, or under which the Company or its Subsidiaries has material default under, any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing)Material Seller Contract; and
(xiiiiv) each collective bargaining agreement or other Contract with neither the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees execution of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of this Agreement nor the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract Agreement and the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or Ancillary Agreements shall constitute a default under, give rise to modification, acceleration, or cancellation rights under, or otherwise adversely affect any of the rights of the Companies, the Subsidiaries or the Group Companies under any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties theretoSeller Contract. The Company Seller has furnished or made available to Parent the Purchaser true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase ordersSeller Contracts, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain including any material executory or continuing terms, conditions, obligations or rights)amendments thereto.
Appears in 4 contracts
Sources: Asset Purchase Agreement (Sina Corp), Asset Purchase Agreement (Sina Corp), Asset Purchase Agreement (Focus Media Holding LTD)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as of the date For purposes of this Agreement, a “Material Contract” shall mean the Company Intellectual Property Agreements and all of the following Contracts to and by which the Company or any of its Subsidiaries is a party or by which they are is bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto)::
(i) any employment, independent contractor or consulting Contract relating to Indebtedness for borrowed money (in each case, under which the Company has continuing obligations as of the date hereof) with any employee, independent contractor or director of the Company or its Subsidiaries or member of the Company Board other than Contracts with contractors or consultants that can be terminated without material penalty upon notice of ninety (90) days or less or offer letters and employment agreements entered into in the ordinary course of business consistent with past practice with employees, independent contractors or directors who are not officers and are terminable “at will” without the Company or its Subsidiaries incurring any material liability or obligation;
(ii) any Contract or plan, including the Company Stock Plans or any stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the consummation of the transactions contemplated hereby or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement, except for benefits or value attributable solely to the placing increase in the value of the Company Common Stock as a result of any of the transactions contemplated by this Agreement;
(iii) any Contract providing for indemnification or any guaranty by or on the part of the Company or any its Subsidiaries (in each case, under which the Company or its Subsidiaries has continuing obligations as of the date hereof), other than (A) any guaranty by the Company of any of its Subsidiary’s obligations or (B) any Contract entered into in connection with the development, distribution, resale, sale, license or provision of any services or hardware or software products of the Company or any of its Subsidiaries or in any inbound license or services agreement, in each case, entered into in the ordinary course of business;
(iv) any Contract containing any covenant (A) limiting the right of the Company or any of its Subsidiaries to engage in any line of business, to make use of any material technology owned by the Company or any of its Subsidiaries or Company Intellectual Property or to compete with any Person in any line of business, prohibiting the Company or any of its Subsidiaries (or, after the Closing Date, Parent or the Surviving Corporation or any of their respective Subsidiaries) from engaging in business with any Person or levying a fine, charge or other payment for doing so or otherwise prohibiting or limiting the right of the Company or its Subsidiaries to distribute or offer any products or services or to purchase or otherwise obtain any software components, parts or subassemblies; or (B) granting any exclusive rights to a third party, in each case other than any such Contracts that (x) may be cancelled without material liability to the Company or its Subsidiaries upon notice of ninety (90) days or less or (y) are not, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole;
(v) any Contract (A) relating to the disposition or acquisition by the Company or any of its Subsidiaries after the date of this Agreement of a Lien (material amount of assets other than a Permitted Lienin the ordinary course of business or (B) on pursuant to which the Company or any of its Subsidiaries will acquire any material assets ownership interest in any other Person or properties other business enterprise other than the Company’s Subsidiaries;
(vi) Contracts, if any, for (A) the top ten (10) distributors for each of the past four (4) complete calendar quarters (as measured by unaudited quarterly bookings identified in the Company’s sales force automation tools), (B) the top fifteen (15) reseller for each of the past four (4) complete calendar quarters (as measured by unaudited quarterly bookings identified in the Company’s sales force automation tools), and (C) the top ten (10) direct customers for the past four (4) complete calendar quarters (as measured by unaudited quarterly bookings identified in the Company’s sales force automation tools), in each case excluding quotes and purchase orders with such distributors, resellers, and customers;
(vii) any Contract providing for the development by any third party of any material Company Intellectual Property for or on behalf of the Company or its Subsidiaries, and which may not be canceled without material liability to the Company or its Subsidiaries upon notice of one hundred eighty (180) days or less;
(viii) containing any obligation to provide support or maintenance for the Company Products outside of the ordinary course of business consistent with past practice, other than those Contracts obligations that are terminable by the Company or any of its Subsidiaries on no more than ninety (90) days notice without material liability or financial obligation to the Company or its Subsidiaries;
(iiix) any Contract under which authorizing another Person to provide support or maintenance to the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based Company’s customers on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life behalf of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limitCompany, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the ClosingSubsidiaries, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company Contracts with distributors or a Subsidiary) resellers that are obligated to provide such support or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedulemaintenance;
(x) any Contract with any Person third party to manufacture or reproduce any Company Products or any Contract to sell or distribute any Company Products, other than Contracts with customers, distributors, resellers or sales representatives entered into in the ordinary course of business;
(xi) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than accounts receivables and payables in the ordinary course of business consistent with past practice;
(xii) any settlement Contract, other than (A) pursuant to which releases immaterial in nature or amount entered into with former employees or independent contractors of the Company or its Subsidiaries (or Parent or any in the ordinary course of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events business or (B) under settlement agreements for cash only (which has been paid or is reserved for on the Company or its Subsidiaries Balance Sheet) and does not exceed $200,000 as to such settlement;
(xiii) any Contract which grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license offer or any other similar rights right with respect to any material Company Product assets, rights or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business properties of the Company or any of its Subsidiaries or for Subsidiaries;
(xiv) any Contract which limits the acquisition payment of dividends by the Company or any of its Subsidiaries Subsidiaries;
(xv) any Contract which relates to a joint venture, partnership, limited liability company agreement, revenue sharing or other similar agreement requiring the sharing of the assets revenues or business of joint venture;
(xvi) any Contract which relates to an acquisition, divestiture, merger or similar transaction and which contains any material obligations (including indemnification, “earn-out” or other Person contingent obligations) that are still in effect;
(other than acquisitions xvii) any Collective Bargaining Agreement or dispositions made in the Ordinary Course of Business), or under similar Contract;
(xviii) any Contract pursuant to which the Company or any of its Subsidiaries is bound to or has committed to provide any continuing obligation with respect product or service to an “earn-out,” contingent purchase price any third party on a most favored nation (MFN) basis or other contingent or deferred payment obligationsimilar pricing basis;
(xiixix) any settlement, conciliation or similar Contract (A) requiring monetary payments by entered into directly between the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiariesa United States federal Governmental Authority, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of pursuant to which the Company or any of its Subsidiaries provided or provides any Company Products to make such United States federal Governmental Authority, other than sales of Company Products to United States federal Governmental Authorities pursuant to purchase orders without any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; andfurther written agreement;
(xviixx) any other Contract the performance of which requires either (A) annual payments to or from that provides for payment obligations by the Company or any of its Subsidiaries in excess of $300,000 1,000,000 or (B) aggregate payments to or from the Company or its Subsidiaries more in excess of $1,500,000 over the life of the agreement and, in each case, any individual fiscal year that is not terminable by the applicable Company or its Subsidiaries upon notice of ninety (90) days or less without material liability to the Company or its Subsidiaries without penalty upon less than thirty Subsidiary and is not disclosed pursuant to clauses (30i) days’ prior written noticethrough (xxi) above; and
(xxi) any other Contract not listed in Section 4.13(a)(i)-(xx) above that would be a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company and its Subsidiaries.
(ib) Section 4.13 of the Company Disclosure Schedule contains a complete and accurate list, as of the date hereof, of all Material Contracts.
(c) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to (and/or each such Subsidiary of the Company’s Knowledge, the counterparties Company party thereto, ) and is in full force and effect effect, and enforceable in accordance with its terms against neither the Company or nor any of its Subsidiaries andparty thereto, nor, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement Knowledge of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not any other party thereto, is in material breach of, or default under, any such Material Contract Contract, and (iii) no event has occurred that (with or without due notice or lapse of time or both) both would result in constitute such a material breach of, or default under, any Material Contract thereunder by the Company or any of its Subsidiaries Subsidiaries, or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as Knowledge of the date hereof (Company, any other than purchase ordersparty thereto, invoicesexcept for such failures to be in full force and effect and such breaches and defaults that would not, and similar confirmatory individually or administrative documents that are ancillary to in the main contractual relationship between aggregate, have a Material Adverse Effect on the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Company.
Appears in 4 contracts
Sources: Merger Agreement (Emc Corp), Merger Agreement (Data Domain, Inc.), Merger Agreement (Emc Corp)
Material Contracts. (a) Section 3.13(a) of Except for the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be agreements set forth on Section 3.13(a) of the Company Disclosure ScheduleSchedule 5.21 (collectively, the “Material Contracts”). True, correct and complete copies as of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
Closing Date there are no (i) employment agreements covering the management of Borrower, (ii) collective bargaining agreements or other labor agreements covering any Contract relating employees of Borrower, (iii) agreements for managerial, consulting or similar services to Indebtedness for borrowed money which Borrower is a party or by which it is bound, (iv) agreements regarding Borrower, its assets or operations or any investment therein to which any of the Company its equity holders is a party, (v) patent licenses, trademark licenses, copyright licenses or its Subsidiaries other lease or license agreements to the placing of which Borrower is a Lien party, either as lessor or lessee, or as licensor or licensee (other than widely-available software subject to “shrink-wrap” or “click-through” software licenses), (vi) distribution, marketing or supply agreements to which Borrower is a Permitted Lienparty, (vii) on customer agreements to which Borrower is a party (in each case with respect to any material assets or properties agreement of the Company type described in the preceding clauses (i), (iii), (iv), (v), (vi) and (vii) requiring payment of more than $250,000 in any year), (viii) partnership agreements pursuant to which Borrower is a partner, limited liability company agreements pursuant to which Borrower is a member or its Subsidiaries;
manager, or joint venture agreements to which Borrower is a party, (iiix) real estate leases, or (x) any Contract under other agreements or instruments to which the Company or its Subsidiaries Borrower is lessee of or holds or operatesa party, in each casecase the breach, any tangible property (other than real property)nonperformance or cancellation of which, owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrencehave a Material Adverse Effect. Schedule 5.21 sets forth, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property each real estate lease agreement to which Borrower is a party as of the Closing Date, the address of the subject property. The consummation of the transactions contemplated by the Loan Documents will not give rise to a right of termination in favor of any party to any Material Contract (other than any Non-Scheduled Contracts);
(vBorrower) any Contract that (A) limits or purports which would reasonably be expected to limithave, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, either individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeMaterial Adverse Effect.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).
Appears in 4 contracts
Sources: Credit Agreement (Aralez Pharmaceuticals Inc.), Credit Agreement (Aralez Pharmaceuticals Inc.), Credit Agreement (Aralez Pharmaceuticals Inc.)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, Except as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure ScheduleSchedule 3.9 hereto, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) none of the Company or any of its Subsidiaries is a party to make any payment oral or incur any Liability as a result of the consummation of the transactions contemplated by this Agreementwritten contract, termination of employment commitment or both; and
agreement (xviii) any that, other Contract the performance of which requires either (A) annual payments than with respect to or from Material Leases, obligates the Company or its Subsidiaries in excess of $300,000 any Subsidiary to pay or (B) aggregate payments to or from entitles the Company or its Subsidiaries in excess any Subsidiary to receive an amount, from and after the date hereof, of $1,500,000 over 250,000 or more annually; (ii) restricting the life Company's or any Subsidiary's ability to conduct the outdoor or mall advertising business generally in any geographic location (including applicable non-competes or similar agreements); (iii) that provides for the lease, sublease, license or other similar rights of possession or occupancy of real property (as tenant, occupier or possessor) used primarily for billboard sites, pursuant to which the agreement and, in each case, that is not terminable current net annual rent payable by the applicable the Company or its Subsidiaries without penalty upon less than thirty any Subsidiary currently exceeds $50,000 (30the "MATERIAL LEASES"); or (iv) days’ prior written notice.
(i) Each Material Contract is valid and binding on evidences indebtedness of the Company or any Subsidiary for money borrowed (whether incurred, assumed, guaranteed or secured by any asset) and, with respect to all such contracts, commitments and agreements, except as set forth on Schedule 3.9 hereto, neither the Company nor any of its Subsidiaries, as applicablenor, to the knowledge of the Company’s Knowledge, any other party to any such contract, commitments and agreements is, in breach thereof or default thereunder and there does not exist under any provision thereof, to the counterparties theretoknowledge of the Company, any event that, with the giving of notice or the lapse of time or both, would constitute such a breach or default, except for such breaches, defaults and is events as to which requisite waivers or consents have been obtained or which would not, individually or in the aggregate, have a Material Adverse Effect. Complete and correct copies of each contract, commitment and agreement set forth on Schedule 3.9 have been furnished or made available to Buyer, and, to the knowledge of the Company, all of such contracts, commitments and agreements are valid, binding and in full force and effect except for such failures to be so valid, binding and enforceable in accordance with its full force and effect which, individually or in the aggregate, would not a Material Adverse Effect.
(b) Pursuant to the terms against of the Credit Agreement and the Revolving Credit Commitments or other applicable governing documents, the Obligations and any other Indebtedness of the Company or and its Subsidiaries andthereunder may be pre-paid by Buyer on the Closing Date pursuant to Section 6.10, subject to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)requirements contemplated thereby.
Appears in 3 contracts
Sources: Stock Purchase Agreement (Universal Outdoor Inc), Stock Purchase Agreement (Universal Outdoor Holdings Inc), Stock Purchase Agreement (Universal Outdoor Inc)
Material Contracts. (a) Except for this Agreement, the Contracts filed as exhibits to the Company SEC Reports filed with the SEC prior to the date of this Agreement and as set forth on Section 3.13(a3.15(a) of the Company Disclosure Schedule contains Schedule, no Group Company is a listing party to, and no Group Company’s properties or assets are bound by, any of all the types of Contracts described listed in clauses (i) through (xiiixi) below to which, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities Section 3.15(a) (such types of Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, being the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any each Contract relating that would be required to Indebtedness for borrowed money be filed by the Company pursuant to Item 4 of the Company or its Subsidiaries or Instructions to Exhibits to the placing of a Lien (other than a Permitted Lien) Company’s most recently filed annual report on any material assets or properties of the Company or its SubsidiariesForm 20-F;
(ii) each Contract relating to any Contract under which Indebtedness in respect of any counterparty involving actual or potential liability to the Group Companies in excess of US$7,000,000 during any 12-month period, other than (x) Indebtedness receivable or payable solely between or among the Company’s wholly-owned Subsidiaries (including, for the purposes of this Section 3.15(a)(ii), the Operating Subsidiaries) or between or among the Company or and any of its wholly-owned Subsidiaries is lessee (including, for the purposes of or holds or operates, in each case, any tangible property (other than real propertythis Section 3.15(a)(ii), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000Operating Subsidiaries) and (y) accounts receivable and payable incurred in the ordinary course of business consistent with past practice;
(iii) any each Contract under which the Company or its Subsidiaries is lessor in respect of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharingstrategic cooperation or collaboration arrangement, partnership, collaboration, co-promotion, commercialization joint sales or research or development Contractmarketing agreement, or similar Contractpartnership arrangement, in each case, which requires, or would reasonably be expected that is material to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life business of the Contract Group Companies taken as a whole or (B) other agreement involving a sharing of profits, losses, costs or liabilities by any Group Company that is material to the business of the Group Companies taken as a whole;
(iv) each of the Contracts described under the caption “Item 4. Information on the Company—C. Organizational Structure” in the Company’s most recently filed annual report on Form 20-F, which (A) provide the Company with effective control over any of its Subsidiaries in respect of which it does not, directly or indirectly, own a majority of the equity interests (each, an “Operating Subsidiary”), (B) provide any Group Company the right or option to purchase the equity interests in any Operating Subsidiary, or (C) transfer economic benefits from any Operating Subsidiary to any other Subsidiary of the Company (the contracts and agreements described in (A), (B) and (C), together, the “Control Agreements”);
(v) each Contract with respect pursuant to which the Company or any of its Subsidiaries (A) receives or is granted any license to any material Company Licensed Intellectual Property (other than any Nonnon-Scheduled Contractsexclusive license to off-the-shelf Software generally available on non-discriminatory pricing terms and other than a non-exclusive license granted in the ordinary course of the grantor’s business) or (B) grants any license to any material Intellectual Property (other than a non-exclusive license granted in the ordinary course of the grantor’s business), or each other Contract relating to Intellectual Property or IT Assets not covered by the foregoing (A) or (B) that is material to the Company and its Subsidiaries, taken as a whole;
(vvi) any each Contract that involves the acquisition or disposition, directly or indirectly (Aby merger, license or otherwise), of any securities of any person (other than a Company Share Award) limits or any assets that have a fair market value or purchase price of more than US$3,000,000;
(vii) each Contract (including any distribution agreements) that limits, or purports to limit, in the ability of any material respect, the freedom of the Group Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any geographic area or during any period of time in a manner that would so limit or purport is material to limitthe Group Companies, in any material respecttaken as a whole, the operations of Parent or any of its Affiliates after the ClosingContract that grants any exclusive rights to any third party (including any exclusive license or exclusive distribution or usage arrangements) if such Contract, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations exclusive rights or restrictions or (C) contains any other provisions restricting or purporting resulting therefrom are material to restrict the ability of the Company or its Subsidiaries to sellGroup Companies, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or taken as a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000whole;
(viii) each Contract between any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its SubsidiariesGroup Company, on the one hand, and any labor union, labor organization directors or works council representing employees officers of any Group Company or their immediate family members or shareholders (other than Parent) of any Group Company holding more than 5% of the Company or its Subsidiariesvoting securities of any Group Company, on the other hand, under which there are material rights or obligations outstanding;
(xivix) each Contract providing for any Contract with the earn-out or similar payment payable by any Group Company or its Subsidiaries, on the one hand, and to any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates person (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employmentother than to another Group Company);
(xvx) each Contract providing for any employment, consulting, bonus, commissions change of control or similar payments to any Third Party in excess of US$2,500,000;
(xi) each Contract involving payments by the Company or any of its Subsidiaries in excess of US$7,000,000 in the aggregate under each Contract, other compensation than payments between or among the Company’s wholly-owned Subsidiaries (including, for the purposes of this Section 3.15(a)(xi), the Operating Subsidiaries) or between or among the Company and any of its wholly-owned Subsidiaries (including, for the purposes of this Section 3.15(a)(xi), the Operating Subsidiaries);
(xii) each Contract relating to any capital expenditure or any disbursement Contract with an employee a contract value exceeding US$7,000,000;
(xiii) each Contract relating to a royalty or individual consultant or independent contractor, involving aggregate payments dividend arrangement that involves payment by the Company of more than $500,000 per year;
(xvi) any employment US$5,000,000 annually based on revenues or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) profits of the Company or any of its Subsidiaries or based on the revenues or profits derived from any material Contract;
(xiv) each share or stock redemption or purchase or other Contract affecting or relating to make any payment or incur any Liability as a result the share capital of the consummation Company or any of its Subsidiaries, including each Contract with any shareholder of the transactions contemplated by this AgreementCompany or any of its Subsidiaries which includes anti-dilution rights, termination voting arrangements or operating covenants;
(xv) each Contract under which the Company or any of employment its Subsidiaries has granted any Person any registration rights, or bothany right of first refusal, first offer or first negotiation with respect to any Ordinary Shares or securities of any Subsidiaries of the Company; and
(xviixvi) any other each Contract the performance of that contains a put, call or similar right pursuant to which requires either (A) annual payments to or from the Company or any of its Subsidiaries in excess of $300,000 could be required to purchase or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiariessell, as applicable, any equity interests of any Person.
(b) Except as would not, individually or in the aggregate, reasonably be expected to the have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of a Group Company’s Knowledge, the counterparties theretoas applicable, and is in full force and effect and enforceable against the such Group Company in accordance with its terms terms, subject to the Bankruptcy and Equity Exception, (ii) to the Company’s knowledge, each Material Contract is a legal, valid and binding obligation of the counterparty thereto, in full force and effect and enforceable against such counterparty in accordance with its terms, subject to the Bankruptcy and Equity Exception, (iii) no Group Company or its Subsidiaries and, to the Company’s Knowledgeknowledge, the counterparties thereto (subject no counterparty, is or is alleged to applicable bankruptcy, insolvency, reorganization, moratorium be in breach or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach violation of, or default under, any Material Contract and Contract, (iiiiv) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledgeknowledge, no person intends to terminate any Material Contract and (v) neither the counterparties theretoexecution of this Agreement nor the consummation of any Transaction shall constitute a material default under, give rise to cancellation rights under, or otherwise adversely affect any of the material rights of any Group Company under any Material Contract. The Company has furnished or made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase ordersContracts, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain including any material executory or continuing terms, conditions, obligations or rights)amendments thereto.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Alibaba Group Holding LTD), Merger Agreement (Ali YK Investment Holding LTD), Merger Agreement (Youku Tudou Inc.)
Material Contracts. (a) Section 3.13(a3.7(a) of the Company Disclosure Schedule contains Schedules sets forth a listing of all Contracts described in clauses (i) through (xiii) below to which, as list of the date of this Agreement, the following Contracts to which a Group Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are each Contract required to be set forth on Section 3.13(a3.7(a) of the Company Disclosure ScheduleSchedules, together with each of the Contracts entered into after the date hereof that would be required to be set forth on Section 3.7(a) of the Company Disclosure Schedules if entered into prior to the date hereof, collectively, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the any Group Company or its Subsidiaries or to the placing of a Lien (other than a any Permitted Lien) on any material assets or properties of the Company or its Subsidiariesany Group Company;
(ii) any Contract under which the any Group Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000100,000;
(iii) any Contract under which the any Group Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiariessuch Group Company, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000100,000;
(iv) any (A) material joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization commercialization, research and development or research or development Contractother similar Contract (including any such Contract that governs the research, development, ownership, enforcement, use, or similar Contractother exploitation of any Intellectual Property Rights or other assets, in each case, case which requires, or would reasonably be expected is material to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled ContractsBusiness);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the any Group Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any area area, to operate any asset or assets or that would so limit or purport to limit, in any material respect, the operations of Parent Holdco or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the any Group Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research productsthe Company Products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, customer in any material respect or that would so limit or purports to limit, in any material respect, Parent Holdco or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the any Group Company or its Subsidiaries in an amount in excess of (A) $300,000 200,000 annually or (B) $1,000,000 500,000 over the life of the agreementContract;
(vii) any Contract requiring the any Group Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiaryany other Group Company) or pursuant to which any Person (other than the Company or a Subsidiaryany other Group Company) has guaranteed the Liabilities of a the Company or a SubsidiaryGroup Company, in each case in excess of $200,000250,000;
(viii) any Contract under which the any Group Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any PersonPerson other than a Group Company;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the any Group Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the any Group Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual PropertyProperty Rights;
(x) any Contract governing the terms of, or otherwise related to, the employment, engagement or services of any current director, manager, officer, employee, or Contingent Worker of a Group Company (A) whose annual base salary (or, in the case of a Contingent Worker, actual or anticipated annual base compensation) is in excess of $150,000 or (B) that provides for severance or any other post-termination payments or benefits;
(xi) any Contract providing for any Change of Control Payment of the type described in clause (a) of the definition thereof;
(xii) any collective bargaining agreements and any other agreements executed with a union, works council or similar organization or a Government Entity regarding the terms and conditions of employment of any employee or Contingent Worker of any Group Company;
(xiii) any Contract with any Top Customer or Top Supplier;
(xiv) any Contract that provides another Person (other than another Group Company or any manager, director or officer of any Group Company) with a power of attorney;
(xv) any Contract that relates to any merger, consolidation or other business combination with any other Person or for the disposition of any material portion of the assets or business of the any Group Company or its Subsidiaries or for the acquisition by the any Group Company or its Subsidiaries of the any material assets or material business of any other Person (other than acquisitions or dispositions made in the Ordinary Course ordinary course of Businessbusiness), or under which the any Group Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xiixvi) any settlement, conciliation or similar Contract (A) requiring monetary the performance of which would be reasonably likely to involve any payments by in excess of $100,000 in the Company or its Subsidiaries after the date of this Agreementaggregate, (B) with a Governmental Authority Entity or (C) that imposes or is reasonably likely to impose, at any time in the future, any material, non-monetary obligations on the any Group Company or its Subsidiaries (or Parent Holdco or any of its Affiliates after the Closing);
(xvii) documents that will be required to be filed with the Registration Statement/Proxy Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrant; and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xviixviii) any other Contract the performance of which requires either (A) annual payments to or from the any Group Company or its Subsidiaries in excess of $300,000 200,000 or (B) aggregate payments to or from the any Group Company or its Subsidiaries in excess of $1,500,000 500,000 over the life of the agreement Contract and, in each case, that is not terminable by the applicable the Group Company or its Subsidiaries without penalty upon less than thirty (30) 90 days’ prior written notice.
(i) Each Material Contract is valid and binding on the applicable Group Company or its Subsidiaries, as applicableand, to the knowledge of the Company’s Knowledge, the counterparties counterparty thereto, and is in full force and effect and enforceable in accordance with its terms against (ii) the applicable Group Company or its Subsidiaries and, to the knowledge of the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcythereto, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract Contract. No written notice of termination has been received by the Company with respect to any Material Contract, and (iii) no event has occurred that (with or without due notice or lapse to the knowledge of time or both) would result in a material breach ofthe Company, or default under, none of the other parties to any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties indicated to a particular Group Company that it intends to terminate the Material Contract or group of Contracts and that, in each case, do not contain any material executory to terminate or continuing terms, conditions, obligations or rights)reduce its business dealings with a Group Company.
Appears in 3 contracts
Sources: Business Combination Agreement (VivoPower International PLC), Business Combination Agreement (Cactus Acquisition Corp. 1 LTD), Business Combination Agreement (Cactus Acquisition Corp. 1 LTD)
Material Contracts. (a) Section 3.13(a3.17(a) of the Company Disclosure Schedule contains sets forth a listing of all Contracts described in clauses (i) through (xiii) below to whichtrue, complete and correct list, as of the date of this Agreement, of each of the following Contracts to which any Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the being “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien all Contracts (other than a Permitted LienLeases listed in Section 3.14(b) on any material assets or properties of the Disclosure Schedule) involving total annual payments by any Company party thereto of more than $2,000,000 within the 12-month period prior to the last day of the most recent completed quarterly period, except in each case for those Contracts that are cancelable by a Company without penalty or its Subsidiariesfurther payment and for those Contracts that are cancelable by a Company with notice of 90 days or less;
(ii) any Contract under which the Company all employment Contracts with employees whose current annual salary is in excess of $100,000 and Contracts with independent contractors or its Subsidiaries consultants (or similar arrangements) whose current annualized consulting fee is lessee in excess of or holds or operates$100,000, except in each case, any tangible property (other than real property), owned case for those Contracts that are cancelable by any other Person, except for any lease a Company without penalty or agreement under which the aggregate annual rental payments do not exceed $500,000further payment with notice of 60 days or less;
(iii) any Contract all Contracts relating to or guaranteeing Indebtedness for borrowed money, or under which the Company any note, bond indenture, mortgage, security interest or its Subsidiaries is lessor other evidence of or permits any third party to hold or operateIndebtedness has been issued, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed case having an outstanding principal amount in excess of $200,0002,000,000;
(iv) all Contracts that limit or purport to limit the ability of any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected Company to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any geographic area or that would so limit during any period of time or purport to limitcontain a “most favored nations” provision, in any such case to the extent that such limitation or provision is material respect, to the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability business of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit Companies;
(v) all Contracts with any potential employee or customer, Governmental Authority involving total annual payments in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any excess of its Affiliates after the Closing$2,000,000;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) the top 20 Contracts with Third-Party Payors entered into by the Company or its Subsidiaries Companies based on the amount of revenue to the Companies in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreementcalendar year 2005;
(vii) any Contract requiring the Company or its Subsidiaries top 20 Contracts with submitters of medical and dental-claims transactions entered into by the Companies based on the aggregate number of medical and dental-claims transactions submitted to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000Companies during calendar year 2005;
(viii) any Contract under which entered into prior to the Company or its Subsidiaries has, directly or indirectly, made or agreed date of this Agreement with respect to make any loan, advance, or assignment the acquisition of payment to any Person outside providing for an earnout obligation of a Company contingent or otherwise, which obligation continues in any respect after the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Persondate hereof;
(ix) any Contract required not described in Section 3.17(a)(viii) which was entered into in the three year period prior to be disclosed on Section 3.19 the date of this Agreement with respect to the Company Disclosure Schedule;acquisition of any Person providing for indemnification or other obligation of a Company, contingent or otherwise, which obligation continues in any respect after the date hereof; and
(x) any Contract with any Person all joint venture agreements or partnership agreements (A) pursuant to which other than contracts entered into in the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion ordinary course of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rightsCompanies).
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Emdeon Corp), Merger Agreement (Emdeon Corp), Agreement and Plan of Merger (Emdeon Inc.)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to whichEach contract, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company document or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
instrument (xivcollectively "SEC Contracts") any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of to which the Company or any of its Subsidiaries is a party that was required to make be filed as an exhibit to the Company's annual report on Form 10-K for the year ended July 31, 1997 was so filed and, neither the Company nor any payment of its Subsidiaries (A) has entered into, from and after July 31, 1997, any contract, agreement or incur other document or instrument (other than this Agreement) that is required to be filed with the SEC that has not been so filed on or before the date of this Agreement or any Liability amendment, modification or waiver under any contract, agreement or other document or instrument that was previously so filed, which amendment, modification or waiver is required to be so filed (collectively "Additional SEC Contracts") or (B) except as listed on Schedule 4.1(s), is a result party to any oral or written agreement, plan or arrangement with any officer, director or employee of the consummation Company or of any Subsidiary of the Company (collectively "Material Employment Contracts" and together with the SEC Contracts and Additional SEC Contracts, the "Material Contracts")
(1) the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of the nature of any of the transactions contemplated by this Agreement, (2) providing severance benefits or other benefits after the termination of employment regardless of the reason for such termination of employment, (3) under which any person may receive payments subject to the tax imposed by Section 4999 of the Code, or both; and
(xvii4) any other Contract of the performance benefits of which requires either (A) annual payments to will be increased, or from the Company or its Subsidiaries in excess vesting of $300,000 or (B) aggregate payments to or from benefits of which will be accelerated, by the Company or its Subsidiaries in excess occurrence of $1,500,000 over the life any of the agreement andtransactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement. Except as set forth on Schedule 4.1(s), in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is a valid and binding on obligation of the Company or its Subsidiaries, as applicableand, to the Company’s Knowledge's knowledge, the counterparties thereto, each other party thereto and is in full force and effect and enforceable in accordance with its terms against without amendment. Except as set forth on Schedule 4.1(s), the Company or its Subsidiaries and, to the Company’s Knowledge's knowledge, each other party thereto has performed all obligations required to be performed by it through the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally date hereof under the enforcement of creditors’ rights Material Contracts and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are is not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or giving notice, or both) would result in a material breach of, or default under, in any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)respect thereunder.
Appears in 3 contracts
Sources: Merger Agreement (Hadco Acquisition Corp Ii), Merger Agreement (Continental Circuits Corp), Merger Agreement (Hadco Acquisition Corp Ii)
Material Contracts. (a) Section 3.13(a) Except for this Agreement or as filed or publicly furnished with the SEC prior to the date hereof, none of the Company Disclosure Schedule contains or any Company Subsidiary is a listing of all Contracts described in clauses (i) through (xiii) below party to whichor is bound by, as of the date hereof, any written contract or other agreement which is a “material contract” (as such term is defined in Item 601(b)(10) of this Agreement, Regulation S-K under the Securities Act) to the Company or its Subsidiaries (each contract that is described in this Section 5.10(a) being a party or by which they are bound, other than a “Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material ContractsContract”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):.
(ib) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business orExcept as, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution tohas not had and would not reasonably be expected to have a Company Material Adverse Effect, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each each Company Material Contract is valid and binding on the Company or its Subsidiaries, as applicable(and/or each such Company Subsidiary party thereto) and, to the Knowledge of the Company’s Knowledge, the counterparties each other party thereto, and (ii) each Company Material Contract is in full force and effect and (except for expiration thereof in the ordinary course in accordance with the terms thereof), enforceable against the Company or each such Company Subsidiary party thereto, as the case may be, in accordance with its terms against the Company or its Subsidiaries andterms, to the Company’s Knowledgeexcept, the counterparties thereto (subject to applicable in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium reorganization or other similar Laws affecting generally the enforcement of creditors’ rights generally and subject to by general principles of equity), equity and (iiiii) neither the Company or its nor any of the Company Subsidiaries andthat is a party thereto, nor, to the Knowledge of the Company’s Knowledge, the counterparties thereto are not any other party thereto, is in material breach of, or default under, any such Company Material Contract and (iii) Contract, and, to the Knowledge of the Company, no event has occurred that (with or without due notice or lapse of time or both) both would result in constitute such a material breach of, or default under, any Material Contract thereunder by the Company or its Subsidiaries any of the Company Subsidiaries, or, to the Knowledge of the Company’s Knowledge, the counterparties any other party thereto, or permit termination, material modification or acceleration by any third party thereunder. The Company has made available to Parent true and complete copies of all Material Contracts in effect as As of the date hereof (other than purchase ordershereof, invoices, and similar confirmatory neither the Company nor any of the Company Subsidiaries has received any written notice of termination or administrative documents that are ancillary to the main contractual relationship between the parties to a particular cancelation under any Company Material Contract or group received any written notice of Contracts and breach of or any default under any Company Material Contract which breach has not been cured, except for any termination, breach or default that, individually or in each casethe aggregate, do has not contain any material executory or continuing terms, conditions, obligations or rights)had and would not reasonably be expected to have a Company Material Adverse Effect.
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 for this Agreement, Section 3.13(a4.17(a) of the Company Disclosure Schedule Letter contains a listing of all Contracts described in clauses (i) through (xiii) below to whichcomplete and correct list, as of the date hereof, of each Contract described in this Agreement, Section 4.17(a) under which the Company or its Subsidiaries any 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 by to which they are boundany of their respective properties or assets is subject, in each case, as of the date hereof, other than a any Company Benefit PlanPlans (all Contracts of the type described in this Section 4.17(a), and that are whether or not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a4.17(a) of the Company Disclosure ScheduleLetter, the being referred to herein as “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, respect the freedom of the Company, any Company Subsidiary or any of their respective affiliates (including Parent and its Subsidiaries affiliates after the Effective Time) to compete or engage or compete in any line of business or geographic region or with any Person or in sell, supply or distribute any area product or service or that would so limit or purport to limit, otherwise has the effect of restricting in any material respectrespect the Company, the operations of Company Subsidiaries or affiliates (including Parent or any of and its Affiliates affiliates after the ClosingEffective Time) from the development, (B) contains any exclusivity, “most favored nation” marketing or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability distribution of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customerproducts and services, in each case, in any geographic area;
(ii) any material respect joint venture or limited liability company agreement (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries) or similar material Contract;
(iii) each acquisition or divestiture Contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would so limit reasonably be expected to result in the receipt or purports to limitmaking by the Company or any Company Subsidiary of future payments in excess of $250,000, in each case, excluding any (x) post-closing retention payments or equity awards, and (y) amounts retained pursuant to customary indemnity escrow or holdback arrangements;
(iv) each Contract that gives any Person the right to acquire any assets of the Company or any Company Subsidiary (excluding sales of inventory in the ordinary course of business) after the date hereof with consideration of more than $100,000;
(v) any material respectsettlement or similar Contract with a Governmental Entity, Parent other than those relating to (x) Taxes, or (y) any Contract with a Governmental Entity in its capacity as a customer of the Company or any of its Affiliates after the ClosingSubsidiaries;
(vi) any settlement or similar Contract requiring restricting in any future capital commitment material respect the operations or capital expenditure (or series conduct of capital expenditures) by the Company or any Company Subsidiary or any of their respective affiliates (including Parent and its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over affiliates after the life of the agreementEffective Time);
(vii) any each Contract requiring pursuant to which the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company Subsidiary has paid or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case received payments in excess of $200,000100,000 in the 12-months ended March 31, 2025, or is obligated to pay or entitled to receive payments in excess of $100,000 in the twelve (12)-month period following the date hereof, in each case, other than (A) Contracts solely between the Company and a wholly owned Company Subsidiary or solely between wholly owned Company Subsidiaries, (B) Contracts with customers, suppliers or vendors of the Company or any Company Subsidiary, (C) Company Leases and (D) Contracts otherwise described in any other subsection of this Section 4.17(a);
(viii) each Contract that is (A) a Contract with a Material Customer, (B) a Material Supplier Agreement, or (C) with a Governmental Entity, providing for or contemplating payments of more than $500,000 over the life of such Contract;
(ix) 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 its affiliates (including Parent or any of its affiliates after the Effective Time) to own, operate, sell, transfer, pledge or otherwise dispose of any businesses or assets;
(x) each Contract under which that contains any exclusivity rights or “most favored nations” provisions or minimum use or supply requirements, in each case, that are binding on the Company or its Subsidiaries has, directly affiliates (including Parent or indirectly, made its affiliates after the Effective Time);
(xi) each Contract not otherwise described in any other subsection of this Section 4.17(a) evidencing outstanding Indebtedness (or agreed to make any loan, advance, or assignment of payment to any Person outside commitments in respect thereof) of the Ordinary Course of Business orCompany or any Company Subsidiary (whether incurred, individually assumed, guaranteed or in the aggregate, secured by any asset) in an amount in excess of $200,000 250,000 other than Contracts solely between the Company and a wholly owned Company Subsidiary or made any capital contribution to, or other investment in, any Personsolely between wholly owned Company Subsidiaries;
(ixxii) any each Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries any Company Subsidiary (A) grants any license, covenant not to assert, release, agreement not to enforce or Parent or any of its Affiliates after the Closing) is or may be required to pay milestonesprosecute, royalties or other contingent payments based on immunity to any researchPerson under or to any Company Intellectual Property Rights, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company is granted a license, covenant not to assert, release, agreement not to enforce or its Subsidiaries grants prosecute, or immunity to or under, any Person any right of first refusalPerson’s Intellectual Property Rights that, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course case of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract each of clauses (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, and (B) with above, is not a Governmental Authority or (C) that imposes any material, nonNon-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); andScheduled License;
(xiii) each collective bargaining agreement or other Contract with between the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its SubsidiariesSubsidiary, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate director or affiliate (other than a wholly owned Company Subsidiary) of the Company or its Subsidiaries any Company Subsidiary, any beneficial owner, directly or indirectly, of more than five percent (5%) of the shares of Company Common Stock or any of their respective Affiliates “associates” or “immediate family” members (excluding employee confidentiality as such terms are defined in Rule 12b-2 and invention assignment agreementsRule 16a-1 of the Exchange Act), equity on the other hand, including any Contract pursuant to which the Company or incentive equity documentsany Company Subsidiary has an obligation to indemnify such officer, director, affiliate, beneficial owner or family member;
(xiv) each Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment)Lease involving annual lease payments in excess of $250,000;
(xv) any employment, consulting, bonus, commissions or Contract not otherwise described in any other compensation Contract subsection of this Section 4.17(a) that would constitute a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with an employee or individual consultant or independent contractor, involving aggregate payments respect to the Company (other than those agreements and arrangements described in Item 601(b)(10)(iii) of more than $500,000 per year;Regulation S-K of the SEC).
(xvib) True and complete copies of each Material Contract in effect as of the date hereof have been publicly filed with the SEC prior to the date hereof or have been made available to Parent. Neither the Company nor any employment Company Subsidiary is in material breach of or consulting default under the terms of any Material Contract. To the Company’s Knowledge, as of the date hereof, no other party to any Material Contract with severanceis in material breach of or default under the terms of any Material Contract. Each Material Contract is a valid, change in control, retention or similar arrangements, that will result in any binding and enforceable obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement Subsidiary which is party thereto and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties of each other party thereto, and is in full force and effect effect, subject to the Enforceability Limitations and enforceable any expiration thereof in accordance with its terms against existing as of the date hereof. As of the date of this Agreement, neither the Company nor any Company Subsidiary has received written notice of the intention or its Subsidiaries anddesire of any party to terminate, cancel, not renew or modify any Material Contract in any material respect. As of the date of this Agreement, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or the lapse of time or both) the giving of notice or both would result in constitute a material breach of, or default under, under any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties applicable Company Subsidiary Member or any other party or parties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as As of the date hereof (other than purchase ordersof this Agreement, invoicesneither the Company nor any Company Subsidiary has received any written notice regarding any actual material violation or breach of, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and thatmaterial default under, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Material Contract.
Appears in 3 contracts
Sources: Merger Agreement (CoreCard Corp), Merger Agreement (Euronet Worldwide, Inc.), Merger Agreement (CoreCard Corp)
Material Contracts. (a) Section 3.13(a3.7(a) of the Company Disclosure Schedule contains Schedules sets forth a listing list of all the following Contracts described in clauses to which any RemainCo Entity (ias it relates to the Business) through (xiii) below to whichor any Group Company is, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they any of the assets or properties of any RemainCo Entity (as it relates to the Business), any Group Company or the Business are bound, other than a Company Benefit Plan, and that are not expired bound or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities subject (such Contracts as are each Contract required to be set forth on Section 3.13(a3.7(a) of the Company Disclosure ScheduleSchedules, together with each of the Contracts entered into after the date hereof that would be required to be set forth on Section 3.7(a) of the Company Disclosure Schedule if entered into prior to the execution and delivery of this Agreement, collectively, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the any Group Company or its Subsidiaries the Business which exceed $50,000 individually or to $100,000 in the placing aggregate, or the incurrence of a any Lien (other than a Permitted Lien) on any material assets or properties of the any Group Company or its Subsidiariesthe Business in connection thereof;
(ii) any Contract under which the any Group Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Personin each case, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000100,000;
(iii) any Contract under which the any Group Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiariesin each case, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000100,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would Contract that is reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate annual payments to or from any RemainCo Entity (as it relates to the Business), any Group Company or its Subsidiaries in excess the Business of more than $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)50,000;
(v) any Contract with any Significant Customer or Significant Supplier;
(vi) any Contract with any Person that distributes, retransmits or otherwise makes available content to subscribers or other customers with respect to the distribution or retransmission of, or the granting of rights or the licensing of, any content related to the Business;
(vii) any Contract with any Person with respect to the (co-)production of any content related to the Business;
(viii) any Contract concerning the establishment or operation of a partnership, strategic alliance, joint venture, limited liability company or similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, joint venture or limited liability company or other similar Contract;
(ix) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the any Group Company or its Subsidiaries the Business 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 operations of Parent TopCo or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or restrictions, (C) contains any other provisions substantially restricting or purporting to restrict the ability of the any Group Company or its Subsidiaries the Business to sell, manufacture, sell or develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect customer or that would so limit or purports to limit, in any material respectrespect TopCo, Parent or any of its Affiliates after the Closing, or (D) obligates any Group Company or the Business to purchase or otherwise obtain any product or service exclusively from a single third party or granting any third party the exclusive right to develop, market, sell or distribute the products or services of the Business;
(vix) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 50,000 annually or (B) $1,000,000 100,000 over the life of the agreement;
(viixi) any Contract requiring any RemainCo Entity (as it relates to the Business) or any Group Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a SubsidiaryGroup Company, in each case in excess of $200,00050,000;
(viiixii) any Contract to which any Group Company is party under which the such Group Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any PersonPerson in excess of $50,000;
(ixxiii) any Commingled Contracts;
(xiv) any Contract required to be disclosed on Section 3.19 of which any RemainCo Entity (as it relates to the Business) or any Group Company Disclosure Schedule;
(x) is party that has been entered into at any Contract with any Person (A) time within the three year period prior to the date hereof pursuant to which the such RemainCo Entity or Group Company acquired or its Subsidiaries (disposed of a business, assets or Parent equity interests with a purchase price in excess of $50,000 or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) such Contract under which the such RemainCo Entity or Group Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation obligation, including with respect to an indemnity, “earn-out,” ”, contingent purchase price or other contingent or deferred payment obligation;
(xiixv) any settlementContracts pursuant to which any RemainCo Entity or any Group Company grants or receives a (sub-)license, conciliation covenant not to sue or other right or immunity with respect to any Intellectual Property Rights that is (or the tangible embodiment of which is) incorporated into, or distributed or used with, any Company Product or that is otherwise material to the Business, other than non-exclusive licenses granted on generally available terms with respect to off-the-shelf un-customized software;
(xvi) any Contract that would reasonably be expected to prevent, materially delay or materially impede FCB’s or such Group Company’s ability to consummate the Transactions;
(xvii) any Contract to which any Group Company is party (A) that was not negotiated and entered into on an arm’s length basis or any other Contract in respect of a Related Party Transaction or (B) with current or former officers, directors or employees of such Group Company pursuant to which such Group Company has indemnification obligations.
(xviii) any Contract in which the counterparty is a Governmental Entity or any of their respective Affiliates;
(xix) any Collective Bargaining Agreement or any other Contract with any Employee Representative Body, in each case, covering any Business Employee;
(xx) any settlement or other similar Contract (A) requiring monetary that is reasonably likely to be required to make any payments by the Company or its Subsidiaries after the date to any Person of this Agreementmore than $50,000, (B) with a Governmental Authority Entity or (C) that imposes or is reasonably likely to impose, at any time in the future, any material, non-monetary obligations on the any Group Company or its Subsidiaries the Business;
(xxi) any Contract pursuant to which any investment banker or Parent other Person is entitled to a fee or any of its Affiliates after commission in connection with the Closing)Transactions; and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xviixxii) any other Contract or group of related Contracts that, individually or in the performance aggregate, if terminated or subject to a default by any party thereto, would have or would reasonably be expected to have a Company Material Adverse Effect.
(b) A copy of which requires either (A) annual payments each Material Contract has been made available by BP to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeMountain.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect effect, valid and binding on, and enforceable in accordance with its terms against against, a Group Company and/or a RemainCo Entity, as the Company or its Subsidiaries case may be, and, to the Company’s KnowledgeKnowledge of BP, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or each other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity)party thereto, (ii) none of the Company Group Companies or its Subsidiaries andthe RemainCo Entities (as the case may be) nor, to the Company’s KnowledgeKnowledge of BP, the counterparties thereto are not in material breach ofany other party thereto, has taken or failed to take any action that, with or without notice, lapse of time, or both, would or would reasonably be expected to (A) constitute a breach, violation or a default under, under any Material Contract or (B) give any Person the right to declare in default or exercise any remedy under any Material Contract (including the right to accelerate the maturity or any performance thereunder, or to cancel, terminate or modify any Material Contract) and (iii) no event none of the RemainCo Entities or the Group Companies has occurred that (with or without due received written notice or lapse of time or both) would result in from any party to a material breach of, or default under, any Material Contract by the Company or its Subsidiaries orof any intention to terminate, to the Company’s Knowledge, the counterparties thereto. The Company has made available seek renegotiation of terms or to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and thatnot renew, in each case, do except in the case of each of clauses (i), (ii) and (iii) as would not contain reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of BP, no counterparty to any material executory Material Contract is in breach or continuing terms, conditions, obligations or rights)violation thereof.
Appears in 3 contracts
Sources: Business Combination Agreement (Mountain & Co. I Acquisition Corp.), Business Combination Agreement (Mountain & Co. I Acquisition Corp.), Business Combination Agreement (Mountain & Co. I Acquisition Corp.)
Material Contracts. (a) Section 3.13(a) of Except for this Agreement, the Company Disclosure Schedule contains a listing Benefit Plans, the OpCo Spin-Off Agreements and agreements filed as exhibits to the Company SEC Documents (including, for the avoidance of all Contracts described in clauses (i) through (xiii) below doubt, those that are filed with the SEC at any time prior to whichthe date hereof and incorporated by reference thereto), as of the date of this Agreement, neither the Company or nor any of its Subsidiaries is a party to or bound by which they are bound(for avoidance of doubt, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant each of clauses (i) through (xii) below being subject to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) first sentence of the Company Disclosure Schedule, preamble to this Article III and shall only apply to the “Material Contracts”). True, correct and complete copies of the Contracts listed extent any Contract or arrangement referred to in clauses (i) through (xii) would be binding on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent PropCo or its agents or representatives, together with all amendments theretoSubsidiaries at the Effective Time):
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC);
(ii) any material Contract relating that will be binding on PropCo or any of its Subsidiaries as of the Effective Time;
(iii) any Contract that involved individual or aggregate payments or consideration of more than $500,000 in the twelve-month period ended June 30, 2015, or is expected to Indebtedness involve individual or aggregate payments or consideration of more than $500,000 in the twelve-month period beginning June 30, 2015 (it being understood that the Company is not making any representation or warranty as to the actual amount of future payments that will be received under any such Contract), for borrowed money of goods and services furnished by or to the Company or its Subsidiaries or to the placing any of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(iiiv) any Company Real Property Leases having a remaining term of more than twelve (12) months and involving a payment of more than $100,000 annually;
(v) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the ClosingSubsidiaries has continuing material indemnification, (B) contains any exclusivity, “most favored nation” earnout or similar provisionsobligations to any third person, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict than those entered into in the ability ordinary course of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closingbusiness consistent with past practice;
(vi) any Contract requiring any future for capital commitment or capital expenditure (or series expenditures involving payments of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) more than $1,000,000 over individually or in the life aggregate, by or on behalf of the agreementPropCo or any of its Subsidiaries;
(vii) any Contract requiring the Company involving a joint venture or its Subsidiaries to guarantee the Liabilities strategic alliance or partnership agreement or other sharing of profits or losses with any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000person;
(viii) any Contract relating to indebtedness under which the principal amount outstanding thereunder payable by the Company or any of its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of is greater than $200,000 or made any capital contribution to, or other investment in, any Person1,000,000;
(ix) any Contract required to be disclosed on Section 3.19 of containing covenants by the Company Disclosure Scheduleor any of its Affiliates not to (A) compete with any person or (B) engage in any line of business or activity in any geographic location, in each case that would be material to the Company;
(x) any Contract with any Person (A) pursuant to which the Company evidencing an outstanding loan, advance or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition investment by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make or in any payment or incur person (other than any Liability as a result other Subsidiary of the consummation Company) of more than $10,000,000 in the transactions contemplated by this Agreementaggregate (excluding trade receivables and advances to employees for normally incurred business expenses, termination each arising in the ordinary course of employment business consistent with past practice);
(xi) any Order or bothsettlement or conciliation agreement with any Governmental Entity; and
(xviixii) any other Contract involving the performance sale, transfer or acquisition of which requires either (A) annual payments to or from any business entered into by the Company or its Subsidiaries any Subsidiary of the Company in excess the three (3) years preceding the date of $300,000 this Agreement. All contracts of the types referred to in clauses (i) through (xii) above are referred to herein as a “Company Material Contract.”
(b) Except as has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (Bi) aggregate payments neither the Company nor any Subsidiary of the Company is in 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 breach of or from default under the terms of any Company Material Contract and (ii) each Company Material Contract is a valid and binding obligation of the Company or its Subsidiaries in excess of $1,500,000 over the life Subsidiary of the agreement and, in each caseCompany, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicableparty thereto and, to the knowledge of the Company’s Knowledge, the counterparties of each other party thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries andeffect, subject to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Remedies Exceptions.
Appears in 3 contracts
Sources: Merger Agreement (PNK Entertainment, Inc.), Merger Agreement (Pinnacle Entertainment Inc.), Merger Agreement (Gaming & Leisure Properties, Inc.)
Material Contracts. (a) Section 3.13(a) of Other than the Company Disclosure Schedule contains Transaction Documents, documents in connection with the Permitted Indebtedness, Existing Indebtedness and Existing Security and those Contracts as Disclosed in the Target SEC Filings, no Group Member is a listing of all Contracts described in clauses (i) through (xiii) below to whichparty to, or bound by as of the date of this Agreementsuch representation is being made, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Material Contract (as defined below). The following Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required shall be deemed to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto)::
(i) any Contract relating to Indebtedness for borrowed money entered into otherwise than in the ordinary course of business, including the Company or its Subsidiaries or to Service Agreements with the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its SubsidiariesPartners;
(ii) any Contract under which the Company agreement or arrangement otherwise than by way of negotiation at arm’s length having a total contract value greater than US$10,000,000 (or its Subsidiaries is lessee of or holds or operates, equivalent in each case, any tangible property (other than real propertycurrencies), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any sale or purchase option or similar Contract under which the Company or its Subsidiaries is lessor of or permits arrangement affecting any third party to hold or operate, in each case, any tangible property (other than real property), material Assets owned or controlled used by the Company any Group Member or its Subsidiaries, except for by which any lease or agreement under which the aggregate annual rental payments do not exceed $200,000Group Member is bound;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization Contract which cannot readily be fulfilled or research performed by any Group Member on time or development Contract, without undue or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess unusual expenditure of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)US$1,000,000;
(v) any Contract that (A) limits which Issuer Group does not have the technical and other capabilities or purports the human and material resources to limitenable it to fulfill, perform and discharge all its outstanding obligations in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line ordinary course of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations without realizing a loss of Parent or any at least US$1,000,000 on closing of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closingperformance;
(vi) any Contract requiring substantially restricting the freedom of any future capital commitment Group Member to provide and take goods and services or capital expenditure (or series of capital expenditures) to manage its own business affairs by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreementsuch means and from and to such persons as it may from time to time think fit;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which (a) any Person Group Member incurs Indebtedness with the aggregate amount of principal and interest payments greater than US$10,000,000 or (other than the Company or a Subsidiaryb) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000any Group Member provides any guarantee;
(viii) any Contract under which the Company whereby any Group Member is, or its Subsidiaries has, directly or indirectly, made or has agreed to make become, a member of any loanjoint venture, advance, consortium or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, partnership or other investment in, any Personunincorporated association;
(ix) any Contract required whereby any Group Member is, or has agreed to be disclosed on Section 3.19 of the Company Disclosure Schedulebecome, a party to any distributorship or agency agreement;
(x) any Contract with that is void, illegal, unenforceable or which contravene any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Propertyapplicable laws and regulations;
(xi) any Contract for that prohibits or materially restricts the disposition sale, disposal or transfer of any portion of the assets Equity Securities (or business of the Company or its Subsidiaries or for the acquisition any interests therein) owned by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligationTarget;
(xii) any settlementshareholder agreements, conciliation joint venture agreements or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); andpartnership agreements;
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment contracts or consulting Contract arrangements with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) senior managers of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or bothTarget; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).
Appears in 3 contracts
Sources: Note Subscription Agreement, Note Subscription Agreement (Cheng Zheng), Note Subscription Agreement (Cheng Zheng)
Material Contracts. (aSchedule 3.1(s) Section 3.13(a) of delivered to Parent by the Company Disclosure Schedule contains a listing prior to the execution of this Agreement lists all Contracts described in clauses (i) through (xiii) below material contracts and agreements to which, as of the date of this Agreementhereof, the Company or its Subsidiaries any Subsidiary is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries Subsidiary is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), bound or under which the Company or its Subsidiaries any Subsidiary has or may acquire any continuing obligation with respect rights, which were not filed prior to an “earn-out,” contingent purchase price the date hereof as exhibits to the Company Commission Filings, which involve or relate to (i) obligations of the Company or any Subsidiary for borrowed money or other contingent or deferred payment obligation;
indebtedness where the amount of such obligations exceeds $100,000 individually, (xiiii) any settlement, conciliation or similar Contract (A) requiring monetary payments the lease by the Company or any Subsidiary, as lessee or lessor, of real property for rent of more than $100,000 per annum, (iii) the purchase or sale of goods (other than raw material to be purchased by the Company on terms that are customary and consistent with the past practice of the Company and in amounts and at prices substantially consistent with past practices of the Company) or services with an aggregate minimum purchase price of more than $100,000 per annum, (iv) rights to manufacture and/or distribute any Pharmaceutical Product which accounted for more than $100,000 of the consolidated revenues of the Company and its Subsidiaries after during the date fiscal year ended December 31, 1998 or under which the Company or any Subsidiary received or paid license or other fees in excess of this Agreement$100,000 during any year, (v) the purchase or sale of assets or properties not in the ordinary course of business having a purchase price in excess of $100,000, (vi) the right (whether or not currently exercisable) to use, license (including any "in-license" or "outlicense"), sublicense or otherwise exploit any intellectual property right or other proprietary asset of the Company or of any of Subsidiary of the Company or any other Person which, when considered together with all such other rights, is material to the Company; (vii) any material collaboration or joint venture or similar arrangement; (viii) the restriction on the right or ability of the Company or any Subsidiary of the Company (A) to compete with any other Person, (B) with a Governmental Authority to acquire any product or other asset or any services from any other Person, (C) that imposes to solicit, hire or retain any materialPerson as an employee, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xviD) to develop, sell, supply, distribute, offer, support or service any product or any technology or other asset to or for any other Person, (E) to perform services for any other Person, or (F) to transact business or deal in any other manner with any other Person; (ix) any employment currency hedging; or consulting Contract (x) individual capital expenditures or commitments in excess of $100,000. All such contracts and agreements are duly and validly executed by the Company or such Subsidiary, and are in full force and effect. Neither the Company nor any of its Subsidiaries has violated or breached, or committed any default under, any contract or agreement, and, to the knowledge of the Company, no other Person has violated or breached, or committed any default under, any contract or agreement, which violation, breach or default (alone or in combination with severanceother violations, breaches or defaults under such contract or agreement or under other contracts or agreements) has had or may reasonably be expected to have a material adverse effect on the Company and its Subsidiaries taken as a whole. No event has occurred which, after notice or the passage of time or both, would constitute a default by the Company or any Subsidiary of the Company under any contract or agreement or give any Person the right to (A) declare a default or exercise any remedy under any contract or agreement, (B) receive or require a rebate, chargeback, penalty or change in controldelivery schedule under any contract or agreement, retention (C) accelerate the maturity or similar arrangementsperformance of any contract or agreement, that will result or (D) cancel, terminate or modify any contract or agreement, in any obligation each case which, together with all other events of the types referred to in clauses (absolute or contingentA), (B), (C) and (D) of this sentence has had or may reasonably be expected to have a material adverse effect on the Company or any of its Subsidiaries to make any payment or incur any Liability taken as a result of whole. Except as disclosed on Schedule 3.1(s), all such contracts and agreements will continue, after the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicableEffective Time, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable be binding in accordance with its their respective terms against until their respective expiration dates. As soon as practicable after the date hereof, the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement shall provide Parent with a list of creditors’ rights and subject to general principles all leases for real property for rent of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto more than $30,000 per annum which are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rightslisted on Schedule 3.1(s).
Appears in 3 contracts
Sources: Merger Agreement (Gilead Sciences Inc), Merger Agreement (Nexstar Pharmaceuticals Inc), Merger Agreement (Warburg Pincus Investors Lp)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses Except (i) through as filed as exhibits to the Company SEC Documents, (xiiiii) below to whichfor this Agreement and the other agreements entered into in connection with the transactions contemplated hereby and (iii) for Company Employee Plans, as of the date of this Agreementhereof, neither the Company or its Subsidiaries nor any Subsidiary of the Company is a party to or is bound by which they are boundany Contract:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) that is with the ten (10) largest customers of the Company and its Subsidiaries during the fiscal year ended January 31, other than a Company Benefit Plan2024 (as determined based on revenue received from such customers during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or statements of work or invoices entered into in the ordinary course of business, and other similar Contracts that are not expired or have not been terminated and not including any ancillary to Contracts pursuant to which the Company has with no material outstanding revenue is paid or executory obligations or Liabilities (such Contracts as are required payable to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which that is with the ten (10) largest vendors of the Company or and its Subsidiaries is lessor during the fiscal year ended January 31, 2024 (as determined based on cost of or permits any third party goods and services paid to hold or operate, in each case, any tangible property (other than real property), owned or controlled such vendors by the Company during such time period) (excluding any non-disclosure agreements, data processing agreements, purchase orders or its Subsidiariesstatements of work or invoices entered into in the ordinary course of business, except for any lease and other similar Contracts that are ancillary to Contracts pursuant to which cost of goods and services is paid or agreement under which payable by the aggregate annual rental payments do not exceed $200,000Company);
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development that is a Government Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, evidencing a capital expenditure for which future payments are required in any material respect, the freedom excess of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing$5,000,000;
(vi) relating to the disposition or acquisition of any Contract requiring business, equity, or all or substantially all of the assets of any future capital commitment or capital expenditure (or series Person for aggregate consideration in excess of capital expenditures) $5,000,000 by the Company or any of its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course ordinary course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) business pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any have material Company Product or any material Intellectual Propertycontinuing obligations;
(xivii) containing (A) a covenant or other provision limiting in any Contract for material respect the disposition of any portion of the assets or business ability of the Company or its Subsidiaries or for the acquisition by any Subsidiary of the Company to compete or its Subsidiaries engage in any line of the assets business or business of to compete with any other Person (in any geographic area, other than acquisitions any customary employee non-solicitation or dispositions made no-hire clauses entered into in the Ordinary Course ordinary course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreementbusiness, (B) with a Governmental Authority “most favored nation”, “exclusivity” or similar provisions, (C) that imposes any material, non-monetary obligations on the Company a right of first refusal or its Subsidiaries (or Parent or any right of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and first offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, right that will result in any obligation (absolute or contingent) limits the ability of the Company or any of its Subsidiaries to make any sell, transfer, pledge or otherwise dispose of assets, rights or properties or (D) a minimum purchase, minimum volume, “earnout” or other contingent, deferred or fixed payment or incur any Liability as a result obligation of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or and its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement andSubsidiaries, in each case, that is not terminable by material to the applicable Company and its Subsidiaries, taken as a whole;
(viii) relating to or evidencing indebtedness for borrowed money, debt securities, warrants or other rights to acquire any debt securities, of the Company or any Subsidiary of the Company, or any guarantee by the Company or of its Subsidiaries without penalty upon less of the obligations of any Person (in each case, excluding, for the avoidance of doubt, intercompany loans between the Company and any of its wholly-owned Subsidiaries or between or among any wholly-owned Subsidiaries of the Company);
(ix) any hedging, swap, derivative, or similar Contract;
(x) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) granted by the Company or any Subsidiary of the Company to Company Intellectual Property (A) on an exclusive basis, (B) pursuant to which the Company or any Subsidiary received licensing revenues for the fiscal year ended January 31, 2024 in excess of $1,000,000, other than thirty non-exclusive licenses granted to customers in the ordinary course of business, and/or (30C) daysthat is otherwise material to the Company and its Subsidiaries taken as a whole;
(xi) that is a license (or a covenant, consent or other rights in or to use Intellectual Property) of Third Party Rights granted to the Company or any Subsidiary of the Company (A) on an exclusive basis, (B) on a non-exclusive basis, if pursuant to which the Company or any Subsidiary made payments during the fiscal year ended January 31, 2024 in excess of $1,000,000, and/or (C) that is otherwise material to the Company and its Subsidiaries taken as a whole;
(xii) that is a Company Real Property Lease with remaining obligations in excess of $1,000,000;
(xiii) that involves a material joint venture, profit sharing, partnership or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $1,000,000 during the fiscal year ended January 31, 2024;
(xiv) that is a settlement, conciliation or similar Contract (x) with any Governmental Authority entered into since February 1, 2021, (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement or (z) that subjects the Company or any of its Subsidiaries to any material ongoing requirements or restrictions (other than ordinary course confidentiality requirements or restrictions);
(xv) any stockholders’ prior written noticeagreement, proxy, voting trust agreement or registration rights agreement or similar agreements, arrangements or commitments relating to any equity securities of the Company or any of its Subsidiaries or relating to disposition, voting or dividends with respect to any equity securities of the Company or any of its Subsidiaries; or
(xvi) is with an affiliate or other Person that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange Act, other than any Contract solely among the Company and its wholly-owned Subsidiaries.
(ib) Each Contract of the type described above in Section 4.15(a), whether or not set forth in Section 4.15(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract is Contract.” Except for Material Contracts that have expired or terminated by their terms, all of the Material Contracts are (A) valid and binding on the Company or its Subsidiariesthe applicable Subsidiary of the Company, as applicablethe case may be, and, to the Knowledge of the Company’s Knowledge, the counterparties each other party thereto, and is (B) in full force and effect effect, except (i) as may be limited by bankruptcy, insolvency, moratorium and enforceable other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (ii) as would not, individually or in accordance with its terms against the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company or its Subsidiaries nor any Subsidiary of the Company has, and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement Knowledge of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, none of the counterparties other parties thereto are not in material breach have, violated any provision of, or default committed or failed to perform any act under, any Material Contract and (iii) no event has occurred that or condition exists, which (with or without due notice or notice, lapse of time or both) would result in constitute a material breach of, of or default under, the provisions of any Material Contract, except in each case for those violations, acts (or failures to act) and defaults which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and, as of February 1, 2021, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. To the Knowledge of the Company, since February 1, 2021, no counterparty to any Material Contract by has (A) canceled or otherwise terminated, or threatened in writing to cancel or otherwise to terminate, its relationship with the Company or any Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the amount of business that any such counterparty presently engages in or presently conducts with the Company and its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and thatthan, in each case, do as would not contain any material executory or continuing terms, conditions, obligations or rights)reasonably be expected to have a Material Adverse Effect.
Appears in 3 contracts
Sources: Merger Agreement (Tzuo Tien), Merger Agreement (Zuora Inc), Merger Agreement (Slaa Ii (Gp), L.L.C.)
Material Contracts. (a) Section 3.13(a) Set forth in Schedule 10.10 is a true and correct list of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below all plans, contracts or understandings providing for bonuses, pensions, options, deferred compensation, retirement payments, royalty payments, profit sharing or similar understandings with respect to whichany present or former officer, as of the date of this Agreementdirector or consultant, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease contract or agreement under which the aggregate annual rental payments do not exceed $500,000;
with any labor union, (iii) any Contract under which contract for the Company future purchase, acquisition or its Subsidiaries is lessor sale of products or permits any third party rights to hold products or operateperformance of services over a period of more than three months from the date hereof not made in the ordinary course of business, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint ventureall leases of real property, profit-sharingincluding all amendments and modifications, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, contract containing covenants limiting the freedom of Limco or any of the Company or its Limco 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
person; and (vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (every other than the Company or a Subsidiary) or pursuant contract to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company Limco or any of its Subsidiaries is a party which could reasonably be expected to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) in annual payments by or to Limco or from the Company or any of its Subsidiaries in excess of Two Hundred Thousand Dollars ($300,000 200,000) or (B) aggregate cumulative payments by or to or from any of the Company or its Limco Subsidiaries in excess of Two Hundred Thousand Dollars ($1,500,000 over 200,000), except for contracts entered into in the life ordinary course of the agreement and, in each case, that is not business which are terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
notice by either party thereto without penalty or liability (i) Each collectively, “Material Contract Contracts”). Limco heretofore has delivered or made available to Calavo true and correct copies of all Material Contracts. Neither Limco nor any of its Subsidiaries is valid and binding on the Company in default or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties theretobreach, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that or shall occur by reason of the transactions contemplated herein which would constitute a default or breach, where such default or breach would entitle another party thereto to accelerate or terminate such Material Contract or otherwise impose a material penalty or forfeiture thereunder (whether with or without due notice or notice, lapse of time or both) would result in the happening or occurrence of any other event), under any Material Contract. All Material Contracts are valid and binding agreements, and to the knowledge of Limco, there are no facts or circumstances which make a material breach of, or default under, under any Material Contract by the Company or its Subsidiaries or, any party thereto likely to occur subsequent to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)hereof.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Limoneira CO), Stock Purchase Agreement (Calavo Growers Inc)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, complete and correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule following material contracts have previously been made available to Parent Pegasus as part of the virtual dataroom process or its agents or representatives, together with all amendments thereto):otherwise:
(i) any Contract relating to Indebtedness for borrowed money of the Company or any of its Subsidiaries (other than any such Contracts relating to Indebtedness solely owing to the Company or any of its Subsidiaries) or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or any of its Subsidiaries;
(ii) any Contract for the disposition of any portion of the assets or business of the Company or any of its Subsidiaries or for the acquisition by the Company or any of its Subsidiaries of the assets or business of any other Person in each case for an aggregate purchase price in excess of €15,000,000 (other than acquisitions or dispositions made in the ordinary course of business), or under which the Company or any of its Subsidiaries has any continuing obligation with respect to an "earn-out", contingent purchase price or other contingent or deferred payment obligation;
(iii) any Contract under which the Company or any of its Subsidiaries is a lessee of or holds hold or operatesoperate, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $€500,000;
(iiiiv) any Contract under which the Company or any of its Subsidiaries is are a lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or any of its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000€500,000;
(ivv) any Contract with outstanding obligations for the sale or purchase of personal property, fixed assets or real estate having a value in excess of €500,000, other than sales or purchases in the ordinary course of business consistent with past practices and sales of obsolete equipment;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or any of its Subsidiaries in an amount in excess of (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract €500,000 annually or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)€4,000,000 over the term of the agreement;
(vvii) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent the TopCo or any of its Affiliates after the Closing, (B) contains any exclusivity, “"most favored nation” " or similar provisions, obligations or restrictions in favor of the Company's or such Subsidiary's counterparty to such Contract, (C) contains "take or pay", "requirements" or other similar provisions obligating the Company or any of its Subsidiaries to provide the quantity of goods or services required by another Person, or (CD) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in the case of each caseof the foregoing clauses (A), (B), (C) and (D), in any material respect or that would so limit or purports to limit, in any material respect, Parent TopCo or any of its Affiliates after the Closing;
(viviii) any Contract requiring that (A) relates to (1) the licensing of, or grant of other rights under, material Intellectual Property to or from the Company or any future capital commitment Subsidiaries, or capital expenditure (2) the ownership, development or series use of capital expendituresany Intellectual Property, or (B) affects the Company's or any Subsidiaries' ability to use, enforce or disclose any Intellectual Property in connection with the resolution of any claim or dispute related to Intellectual Property, excluding in the case of either (A) or (B) (x) non-exclusive end-user licenses for unmodified, commercially available, off-the-shelf Software, with an aggregate fee of less than €300,000, and (y) non-exclusive licenses granted by the Company or its Subsidiaries a Subsidiary to customers in the ordinary course of business consistent with past practice;
(ix) any Contract that is a hosting agreement or a co-location agreement with an amount aggregate fee for hosting services in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement€500,000;
(viix) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a any Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a any Subsidiary, in each case in excess of $€200,000;
(viiixi) any Contract under which the Company or its Subsidiaries any Subsidiary has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person (other than between the Company and any Subsidiary) outside of the Ordinary Course ordinary course of Business business or, individually or in the aggregate, in an amount in excess of $200,000 €1,500,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation settlement or similar Contract (A) requiring monetary the performance of which would be reasonably likely to involve any payments by in excess of €500,000 in the Company or its Subsidiaries aggregate after the date of this Agreement, (B) with a Governmental Authority Authority, or (C) that imposes or is reasonably likely to impose, at any materialtime in the future, any material non-monetary obligations on the Company or any of its Subsidiaries (or Parent TopCo or any of its Affiliates after the Closing); and;
(xiii) each collective bargaining agreement or other any Contract with the Company a director, shareholder, executive officer, other employee or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees individual service provider of the Company or its Subsidiaries, on the other handin each case, with annual base compensation in excess of €500,000 or that (A) provides for Change of Control Payments or (B) provides for retention bonuses, severance, or similar payments in excess of €500,000;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member Lease involving annual lease payments in excess of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment)€500,000;
(xv) any employment(A) material advertising, consultingagency, bonusoriginal equipment manufacturer, commissions dealer, distributors, joint marketing, joint development, research and development or other similar Contract, and (B) any Contract establishing any joint venture, profit-sharing, partnership, co-promotion, commercialization, strategic alliance or other compensation Contract with an employee collaboration that is material to the business of the Company and its Subsidiaries taken as a whole (other than joint ventures, profit-sharing, partnerships, co-promotion, commercialization, strategic alliances, and other collaborations entered into for purposes of a specific project or individual consultant or independent contractor, involving aggregate payments group of more than $500,000 per yearprojects and which are not material to the business of the Company and its Subsidiaries taken as a whole);
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries any Subsidiary in excess of $300,000 €700,000 or (B) aggregate payments to or from the Company or its Subsidiaries any Subsidiary in excess of $1,500,000 €2,500,000 over the life term of the agreement; and
(xvii) any collective bargaining agreement andor other Contract with any labor union, works council or labor organization (each, a "Labor Agreement").
(b) Except, in each case, that is as would not terminable by reasonably be expected to be, individually or in the applicable aggregate, material to the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, taken as applicablea whole, to the Company’s Knowledge, the counterparties thereto, and knowledge each Material Contract is (i) in full force and effect and (ii) a legal, valid and binding obligation of the Company or any of its Subsidiaries party thereto, enforceable in accordance with its terms against the Company or its Subsidiaries party thereto and, to the knowledge of the Company’s Knowledge, the counterparties thereto (other parties thereto, in each case, subject to applicable bankruptcythe Enforceability Exceptions. Except, insolvencyin each case, reorganizationas would not reasonably be expected to be, moratorium individually or other Laws affecting generally in the enforcement of creditors’ rights aggregate, material to the Company and subject to general principles of equity)its Subsidiaries, (ii) taken as a whole, there is no material breach or default by the Company or any of its Subsidiaries or, to the knowledge of the Company, any third party under any Material Contract, and, to the knowledge of the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iiiA) no event has occurred that which (with or without due notice or lapse of time or both) would result in constitute a material breach or default or would permit termination of, or default undera material modification or acceleration thereof by any party to such Material Contract, any and (B) no party to a Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties has claimed a force majeure with respect thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and thatExcept, in each case, do as would not contain reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole, since December 31, 2019 through the date of this Agreement, neither the Company nor any material executory of its Subsidiaries have received notice of (i) any breach or continuing termsdefault under any Material Contract or (ii) the intention of any third party under any Material Contract to cancel, conditionsterminate or modify the terms of any such Material Contract, or accelerate the obligations of the Company or rights)any of its Subsidiaries thereunder.
Appears in 2 contracts
Sources: Business Combination Agreement (Pegasus Digital Mobility Acquisition Corp.), Business Combination Agreement (Pegasus Digital Mobility Acquisition Corp.)
Material Contracts. (a) Section 3.13(aSchedule 4.8(a) of the Company Seller Disclosure Schedule contains lists all of the following Contracts to which any Acquired Company is a listing party or to which Seller or any of all its Affiliates is a party that is a Shared Contract or primarily relates to the Business (indicating with an asterisk (*) any such Contracts described to which Seller or any of its Affiliates (other than the Acquired Companies) is a party) and that are in clauses (i) through (xiii) below to which, effect and not entirely fulfilled or performed as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, Agreement (other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Plans) (the Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth listed on Section 3.13(aSchedule 4.8(a) of the Company Seller Disclosure Schedule, collectively, the “Material Contracts”). True; provided that (x) order forms, correct purchase orders, statements of work and complete copies (y) any Contracts of the Contracts type described in Section 4.8(a)(iii), in each case, need not be listed on Section 3.13(aSchedule 4.8(a) of the Company Seller Disclosure Schedule have previously been made available to Parent or its agents or representatives(the Contracts described in clauses (x) and (y), together with all amendments thereto):the “Specified Material Contracts”), but shall otherwise constitute Material Contracts hereunder:
(i) any Contract with a Key Customer;
(ii) any Contract with a Key Supplier;
(iii) Contracts that (A) involve aggregate payments to the Acquired Companies, or aggregate payments by the Acquired Companies, in each case, in excess of $3,000,000 in the prior twelve (12) months or (B) are reasonably expected to involve aggregate payments to the Acquired Companies, or aggregate payments by the Acquired Companies, in each case, in excess of $3,000,000 in any calendar year period;
(iv) any Contract that requires Seller or any of its Subsidiaries (including the Acquired Companies) to deal exclusively with a third party in connection with the sale or purchase of any product or service or geographic area;
(v) any Contract that contains (A) “most favored nation”, first refusal, right of first negotiation, first offer provisions or similar preferential terms or (B) take-or-pay or similar minimum purchase requirements, in each case, in favor of any other Person;
(vi) any Contract that relates to an acquisition, lease or divestiture of the equity, assets or property or business of any Person (whether by merger, sale of stock or other equity, sale of assets or otherwise) (A) with a purchase price in excess of $3,000,000, (B) that is material to the operation of the Business, taken as a whole or (C) that contains covenants, indemnities or other obligations that remain in effect and would reasonably be likely to be material to the Business, taken as a whole;
(vii) any Contract relating to Indebtedness for borrowed money of the Company Acquired Companies or its Subsidiaries or with respect to the placing of a Lien Business;
(viii) any Contract that creates any Encumbrance (other than a any Permitted LienEncumbrance) on upon any Owned Real Property, any Leased Real Property or any material assets or properties asset of the any Acquired Company or its Subsidiariesthe Business;
(iiix) any Contract under which that is a material IP Contract;
(x) any Shared Contract;
(xi) any Government Contract involving aggregate revenue of the Business in excess of $3,000,000 for the twelve (12) month period ended December 31, 2023;
(xii) any Contract that provides for any joint venture, partnership, collaboration or other arrangement involving a sharing of profits or losses of any Acquired Company with any Person;
(xiii) any Contract limiting or restraining (or purporting to limit or restrain) in any material respect Seller or any of its Subsidiaries is lessee (including the Acquired Companies) or the Business from (A) competing with any Person in any market or geographic area or in any business, (B) engaging in any type of business or holds or operates(C) acquiring any entity, in each case, that relates to or affects the Business or any tangible property of the Acquired Companies;
(xiv) any Contract involving a loan (other than real propertytransactions on credit in the ordinary course of business) or advance to (other than advances to any Business Employee extended in the ordinary course of business), owned by or investment in, any other PersonPerson or any Contract relating to the making of any such loan, except for any lease advance or agreement under which the aggregate annual rental payments do not exceed $500,000investment;
(iiixv) any Contract under which the Company involving any actual or its Subsidiaries is lessor of threatened Proceeding or permits any third party to hold other dispute (A)(1) entered into since January 1, 2021 and (2) that has involved or operate, will involve payment in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries an amount in excess of $1,000,000 over the life 250,000 (net of the Contract third-party insurance coverage) or (B) that contains ongoing material obligations, including obligations to pay amounts, individually or in the aggregate, in excess of $500,000 (net of third-party insurance coverage and excluding compliance with confidentiality, non-disparagement, and other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contractssimilar customary provisions);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vixvi) any Contract requiring any future capital commitment or capital expenditure (or series of the capital expenditures) by the Company Seller or any of its Subsidiaries (including the Acquired Companies) in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life respect of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case Business in excess of $200,0003,000,000;
(viiixvii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment that contains obligations with respect to any Person outside contingent payment of any type (including under any purchase price adjustment, earn-out, deferred payment or similar provision) in excess of $3,000,000;
(xviii) any Real Property Lease that is material to the Business;
(xix) any supply or tolling Contract for the supply of raw materials, intermediates or finished goods for which there is no reasonably available alternative source as of the Ordinary Course date of Business orthis Agreement; and
(xx) any Contract that contains any material indemnification or contribution right or obligation, other than any such right or obligation (1) incurred in the ordinary course of business with any customer or supplier, (2) that provides for any type of customary director and officer indemnification arrangement or (3) in respect of Retained Liabilities.
(b) Except as would not reasonably be expected to have, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution toa Material Adverse Effect, or other investment in, any Person;
(ixi) any Contract required to be disclosed on Section 3.19 each of the Company Disclosure Schedule;
Material Contracts is in full force and effect, (xii) there exists no default or breach under any Contract with such Material Contracts by any Person (A) pursuant to which the Acquired Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company Seller or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicableor, to the CompanySeller’s Knowledge, the counterparties theretoany other party to such Material Contracts, and is in full force and effect and enforceable in accordance (iii) there exists no event or circumstance with its terms against the respect to any Acquired Company or Seller or any of its Subsidiaries andor, to the CompanySeller’s Knowledge, the counterparties thereto (subject any other party to applicable bankruptcysuch Material Contracts, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would create a default or breach under any of the Material Contracts or result in a termination right thereof or would cause or permit the acceleration of or other changes of or to any material breach of, right or default under, obligation or the loss of any Material Contract by the Company or its Subsidiaries material benefit thereunder and (iv) there exists no actual or, to the CompanySeller’s Knowledge, the counterparties theretothreatened termination or cancellation of any Material Contract. The Company Seller has made available to Parent true Purchaser a complete and complete copies accurate copy of all each Material Contracts Contract, other than any Specified Material Contract, that is in effect as of the date hereof of this Agreement (other than purchase orderstogether with all legally binding amendments, invoicesmodifications, and similar confirmatory schedules or administrative documents that are ancillary supplements thereto). Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, none of the Acquired Companies or, to the main contractual relationship between extent related to the parties Business, Seller or any of its other Affiliates has received any written or, to a particular Seller’s Knowledge, oral notice under any Material Contract that any counterparty to any Material Contract intends to terminate any such Material Contracts or is repudiating, not renewing, modifying, or accelerating any material obligation under any Material Contract or group of Contracts and that, in each case, that it intends to do not contain so. There have been no material disputes under any material executory or continuing terms, conditions, obligations or rights)Material Contract during the period beginning three (3) years prior to the date hereof.
Appears in 2 contracts
Sources: Transaction Agreement (DOVER Corp), Transaction Agreement (Terex Corp)
Material Contracts. (a) Section 3.13(a4.19(a) of the Company Disclosure Schedule contains Letter sets forth a listing of all Contracts described in clauses (i) through (xiii) below to whichtrue, correct and complete list, as of the date hereof, and the Company has made available to Parent and Merger Sub (or Parent’s outside counsel) true, correct and complete copies of this Agreementeach Contract (and any material amendments, supplements and modifications thereto) which is in effect as of the date hereof (or pursuant to which the Company or any of its Subsidiaries has any continuing obligations thereunder) and under which the Company or any of its Subsidiaries is a party or by which they are boundthe Company, other than a Company Benefit Planany of its Subsidiaries or any of their respective properties or assets is bound that (provided, that the true, correct and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be complete list set forth on Section 3.13(a4.19(a) of the Company Disclosure Schedule, Letter shall exclude any Contracts under which Parent or any of its Affiliates is a party):
(i) has been filed or is required to be filed by the Company as a “Material Contracts”). True, correct and complete copies material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed by the Company on a Current Report on Form 8-K (provided that such Contracts listed on need not be set forth in Section 3.13(a4.19(a) of the Company Disclosure Schedule Letter if true, correct and complete (subject to redactions) copies of such Contracts have previously been made available filed as exhibits to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or SEC Reports prior to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiariesdate hereof);
(ii) any Contract under which involving aggregate payments by the Company or and its Subsidiaries is lessee or aggregate payments payable to the Company and its Subsidiaries under such Contract of or holds or operatesmore than $250,000 in the twelve (12) month period prior to the date of this Agreement and in any prospective twelve (12) month period (including, in each case, any tangible property (other than real propertyby means of royalty, milestone or similar payments), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract contains covenants that (A) limits or purports to limit, limit in any material respect, respect the freedom of the Company or any of its Subsidiaries (or, after consummation of the Merger, would limit in any material respect the freedom of the Surviving Corporation and its Affiliates) to compete or engage or compete in any line of business business, drug discovery or any development program, therapeutic area or geographic area, or with respect to any class of compounds, molecules or products, or with any Person Person, (B) contain any “most favored nations” or in any area or that would so limit or purport to limit, in any material respect, similar preferential pricing terms and conditions granted by the operations of Parent Company or any of its Affiliates after the ClosingSubsidiaries, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains contain exclusivity obligations (or similar requirement) or otherwise limit in any other provisions restricting material respect the freedom or purporting to restrict the ability right of the Company or any of its Subsidiaries to sell, manufactureresearch, develop, commercializesell, test distribute or research products, directly manufacture any products or indirectly through third parties, services or to solicit customers;
(iv) grants any potential employee third party rights of first refusal, rights of first option, rights of first offer or customer, in each case, similar rights or options to purchase or otherwise acquire any interest in any of the material respect properties or that would so limit or purports to limit, in any assets (including material respect, Parent Intellectual Property Rights) owned by the Company or any of its Affiliates after Subsidiaries;
(v) provides for or governs the Closingformation, creation, operation, management or control of (A) any partnership, joint venture, strategic alliance, collaboration, co-promotion or profit-sharing arrangement or (B) any material research and development arrangement (each Contract under subclauses (A) and (B), a “Collaboration Agreement”);
(vi) provides for the assignment or grant of a license, right or immunity (including a covenant not to ▇▇▇ or right to enforce or prosecute any Contract requiring Patents) by a third party for any future capital commitment of its Intellectual Property Rights to the Company or capital expenditure any of its Subsidiaries, other than Incidental Contracts;
(vii) provides for the assignment or series grant of capital expendituresa license, right or immunity (including a covenant not to ▇▇▇ or right to enforce or prosecute any Patents) by the Company or any of its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (Company Intellectual Property Rights to any third party, other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000Incidental Contracts;
(viii) any Contract under which other than solely between or among the Company or its Subsidiaries has, directly or indirectly, made or agreed to make and any loan, advance, or assignment of payment to any Person outside Subsidiary of the Ordinary Course of Business orCompany, individually relates to indebtedness for borrowed money (whether incurred, assumed, guaranteed or in the aggregate, in secured by any asset) having an outstanding principal amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person250,000;
(ix) constitutes any acquisition or divestiture Contract required to be disclosed on Section 3.19 (whether by merger, consolidation, purchase or sale of stock or otherwise) of any interest in any Person or any business, line of business or division thereof, or a portion of the Company Disclosure Scheduleassets of any Person that has not yet been consummated or that has continuing material obligations (which obligations shall include any “earnout” or similar contingent or deferred payments);
(x) involves the settlement of any Contract with any Person pending or threatened claim, action or proceeding (A) pursuant to which the Company or its Subsidiaries (or Parent or with any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this AgreementGovernmental Authority, (B) with a Governmental Authority which requires payment obligations after the date hereof, in excess of $250,000 or (C) that imposes any material, continuing material non-monetary obligations on the Company (which obligations shall include any monitoring or its Subsidiaries (material reporting obligations to any other Person or Parent any obligations that limit in any material respect the ability of the Company or any of its Affiliates after the ClosingSubsidiaries to operate its business); and;
(xiiixi) each collective bargaining agreement or other Contract with has been entered into between the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate director or affiliate (other than a wholly-owned Subsidiary of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingentCompany) of the Company or any of its Subsidiaries to make or any payment of their respective “associates” or incur any Liability “immediate family” members (as a result such terms are defined in Rule 12b-2 and Rule 16a-1 of the consummation Exchange Act), on the other hand, including any Contract pursuant to which the Company or any of its Subsidiaries has an obligation to indemnify such officer, director, affiliate or family member (but not including any Plans);
(xii) (A) contains any non-solicitation or non-hire restrictions that purport to impose material obligations or restrictions upon any controlling Affiliates of the transactions contemplated by this AgreementCompany pursuant to the terms thereof or (B) purports to assign or grant a license, termination right or immunity to the Intellectual Property Rights of employment or bothany controlling Affiliates of the Company pursuant to the terms thereof; and
(xviixiii) any other has been entered into with a Governmental Authority. Each Contract of the performance type described in clauses (i) through (xiii) above (whether listed on Section 4.19(a) of which requires either (A) annual payments to or from the Company Disclosure Letter or its Subsidiaries in excess of $300,000 or (B) aggregate payments not), other than a Plan, is referred to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeherein as a “Material Contract”.
(b) Except as would not have a Company Material Adverse Effect, (i) Each each Material Contract is valid and binding on the Company or its Subsidiaries, as applicablethe Subsidiary of the Company that is a party thereto and, to the Knowledge of the Company’s Knowledge, the counterparties each other party thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries andeffect, subject to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity)Enforceability Exceptions, (ii) the Company or and its Subsidiaries and, have complied with all obligations required to the Company’s Knowledge, the counterparties thereto are not in material breach of, be performed or default under, any complied with by them under each Material Contract and (iii) there is no event has occurred that (with or without due notice or lapse of time time, or both) would result in a material default under or breach of, or default under, of any Material Contract by the Company or any of its Subsidiaries Subsidiaries, or, to the Knowledge of the Company’s Knowledge, the counterparties by any other party thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as As of the date hereof (other than purchase ordershereof, invoicesneither the Company nor any of its Subsidiaries has received any written notice or claim from any third party to any Material Contract of any default, breach, violation, termination or cancellation under any Material Contract. For purposes of this Section 4.19(b) and similar confirmatory or administrative documents that are ancillary Section 6.1(b)(xv)(B), the term “Material Contract” shall be deemed to include any Contract entered into after the date of this Agreement that, if entered into prior to the main contractual relationship between the parties to date hereof, would qualify as a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Biospecifics Technologies Corp), Merger Agreement (Endo International PLC)
Material Contracts. (a) Section 3.13(a) of Except for this Agreement or as designated as an exhibit to the Company Disclosure Schedule contains Partnership’s annual report on Form 10-K for the year ended December 31, 2008 or to a listing of all Contracts described in clauses (i) through (xiii) below ▇▇▇▇▇▇ SEC Document filed thereafter and prior to which, as of the date of this Agreement, neither the Company or Partnership nor any of its Subsidiaries is a party to or by bound by, as of the date hereof, any Contract (whether written or oral) which they are bound, other than is a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no “material outstanding or executory obligations or Liabilities contract” (as such Contracts as are required to be set forth on Section 3.13(aterm is defined in Item 601(b)(10) of Regulation S-K of the Company Disclosure Schedule, SEC) (all contracts of the type described in this Section 3.17(a) being referred to herein as “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract (other than the ▇▇▇▇▇▇ Operating Credit Agreement) is valid and binding on the Company or Partnership and any of its SubsidiariesSubsidiaries that is a party thereto, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect effect, except where the failure to be valid, binding and enforceable in accordance with its terms against full force and effect, either individually or in the Company or its Subsidiaries andaggregate, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity)would not have a ▇▇▇▇▇▇ Material Adverse Effect, (ii) the Company or Partnership and each of its Subsidiaries and, has in all material respects performed all obligations required to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any be performed by it under each Material Contract (other than the ▇▇▇▇▇▇ Operating Credit Agreement), except where such noncompliance, either individually or in the aggregate, would not have a ▇▇▇▇▇▇ Material Adverse Effect, and (iii) no neither the Partnership nor any of its Subsidiaries knows of, or has received notice of, the existence of any event has occurred that (with or without due condition which constitutes, or, after notice or lapse of time or both) would result in , will constitute, a material breach of, default on the part of the Partnership or default under, any of its Subsidiaries under any such Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase ordersthe ▇▇▇▇▇▇ Operating Credit Agreement), invoicesexcept where such default, either individually or in the aggregate, would not have a ▇▇▇▇▇▇ Material Adverse Effect.
(c) The ▇▇▇▇▇▇ Operating Credit Agreement is valid and binding on ▇▇▇▇▇▇ Operating, LLC and in full force and effect. Except for a Ratio Default, (i) each ▇▇▇▇▇▇ Group Entity has performed all obligations required to be performed by it under the ▇▇▇▇▇▇ Operating Credit Agreement, and similar confirmatory (ii) no ▇▇▇▇▇▇ Group Entity is in breach, default (or administrative documents that are ancillary to after notice or lapse of time or both, would be in default) or violation in the main contractual relationship between performance of any obligation, agreement or condition contained in the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)▇▇▇▇▇▇ Operating Credit Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Hiland Holdings GP, LP), Merger Agreement (Hiland Partners, LP)
Material Contracts. (a) Except as set forth in Section 3.13(a) 5.15 of the Company Seller Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below or as filed as exhibits to which, as of the Seller SEC Reports prior to the date of this Agreement, the Company or and except for this Agreement, neither Seller nor any of its Subsidiaries is a party to or is bound by which they are boundany contract, other than a Company Benefit Planarrangement, and that are not expired commitment or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
understanding (i) any Contract relating to Indebtedness for borrowed money that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
Exchange Act), (ii) which limits the ability of Seller or any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to compete or engage or compete in any line of business or with any Person or to solicit business in any area or that would so limit or purport to limitgeographic area, in any material respect, the operations of Parent (iii) which provides for exclusivity by Seller or any of its Affiliates after the ClosingSubsidiaries with respect to any material products or services sold or purchased by Seller or any of its Subsidiaries, (Biv) contains that by its terms would prohibit or materially delay the consummation of the Offer, the Merger or any exclusivityof the other transactions contemplated by this Agreement, “most favored nation” or similar provisions, obligations or restrictions or (Cv) contains with any other provisions restricting or purporting to restrict the ability customer of the Company Seller or its Subsidiaries which is expected to sellrelate to more than $1,000,000 in annual revenue for the fiscal year ending September 30, manufacture2008. Each contract, developarrangement, commercializecommitment or understanding of the type described above in this Section 5.15, test whether or research productsnot set forth in Section 5.15 of the Seller Disclosure Schedule, directly is referred to herein as a “Seller Contract.” All of the Seller Contracts are valid and binding on Seller and each of its Subsidiaries that is a party thereto and, to Seller’s knowledge, each other party thereto, as applicable, and in full force and effect, subject to applicable bankruptcy, insolvency, moratorium or indirectly through third partiesother similar Laws relating to creditors’ rights and general principles of equity. Neither Seller nor any of its Subsidiaries has, or and to solicit any potential employee or customerthe knowledge of Seller, in each casenone of the other parties thereto have, violated in any material respect any provision of, or that committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both would so limit or purports to limit, in any constitute a material respect, Parent or any of its Affiliates after default under the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities provisions of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a SubsidiarySeller Contract, except in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business orfor those violations and defaults which, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required would not reasonably be expected to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or a Seller Material Adverse Effect and neither Seller nor any of its Subsidiaries to make has received written notice of any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeforegoing.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).
Appears in 2 contracts
Sources: Merger Agreement (BladeLogic, Inc.), Merger Agreement (BMC Software Inc)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains 3.12 sets forth a listing of all Contracts described in clauses (i) through (xiii) below to whichcomplete and correct list, as of the date of this Agreement, of all agreements of the following type to which the Company or its Subsidiaries a Company Subsidiary is a party or by which they are boundmay be bound (collectively, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant the "Material Contracts"): (i) agreements filed as an exhibit to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are SEC Reports and each agreement that would have been required to be set forth on Section 3.13(a) filed as an exhibit to the Company SEC Reports had such agreement been entered into as of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies date of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) filing any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
such SEC Report; (ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operatesemployment, in each caseseverance, any tangible property (other than real property)termination, owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
consulting and retirement agreements; (iii) any Contract under which the Company loan agreements, indentures, letters of credit, mortgages, notes and other debt instruments evidencing indebtedness in excess of Five Hundred Thousand Dollars ($500,000); (iv) agreements that require aggregate future payments to or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiariesany Company Subsidiary of more than Five Hundred Thousand Dollars ($500,000) (other than purchase orders and advertising sales contracts entered into in the ordinary course of business); (v) agreements containing any "change of control" provisions which, except for any lease or agreement under which the aggregate annual rental if triggered, would involve payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries any Company Subsidiary in excess of Two Hundred Fifty Thousand Dollars ($1,000,000 over 250,000) or other material rights or obligations; (vi) material agreements with any key employee, director, officer, or person known to the life Company to be a direct or indirect stockholder of the Contract or Company; (Bvii) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of agreements prohibiting the Company or its Subsidiaries to engage any Company Subsidiary from engaging or compete competing in any line of business or with limiting such competition; (viii) except for the partnership agreements of the Company Subsidiaries, any Person joint venture, partnership and similar agreements involving a sharing of profits; (ix) acquisition or in any area divestiture agreements relating to the (A) sale of assets or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability stock of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, Company Subsidiary (other than sales of inventory in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any the ordinary course of its Affiliates after the Closing;
(vibusiness) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life purchase of the agreement;
(vii) any Contract requiring the Company assets or its Subsidiaries to guarantee the Liabilities stock of any Person other person (other than the purchase of inventory in the ordinary course of business and acquisitions of additional interests in Company Subsidiaries involving payments by the Company of less than Five Hundred Thousand Dollars ($500,000) in the aggregate); (x) brokerage, finder's or a Subsidiaryfinancial advisory agreements; (xi) or pursuant to which guarantees of indebtedness for borrowed money of any Person person (other than the a Company or a Subsidiary); (xii) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
interconnection agreements and switch sharing agreements; and (viiixiii) any Contract agreements under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition Subsidiary manages a cellular system of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticethird party.
(ib) Each Except as set forth in Schedule 3.12, all the Material Contract is Contracts are valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable on the date hereof except to the extent they have previously expired in accordance with its terms against their terms, and neither the Company nor any Company Subsidiary has (or its Subsidiaries and, to the Company’s Knowledge, the counterparties has any knowledge that any other party thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (iihas) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach violated any provision of, or default under, committed or failed to perform any Material Contract and (iii) no event has occurred that (act which with or without due notice or notice, lapse of time or both) both would result in constitute a material breach default under the provisions of, or default under, any Material Contract by Contract, except for defaults which would not in the aggregate reasonably be expected to have a Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties theretoMaterial Adverse Effect. The Company has made available to Parent true True and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory have been delivered to Acquiror or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)made available for inspection.
Appears in 2 contracts
Sources: Merger Agreement (Price Communications Corp), Merger Agreement (Palmer Wireless Inc)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains lists each of the following Contracts to which the Company or any Company Subsidiary is a listing party, or by which it is bound or to which any of all Contracts described its respective assets or properties is bound, in clauses (i) through (xiii) below to whicheach case, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities Agreement (such Contracts as are required to be set forth Contracts, whether or not listed on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K) that has been, or was required to Indebtedness be, filed with the SEC with the Company’s Annual Report on Form 10-K for borrowed money the year ended March 31, 2018 or any SEC Reports filed after the date of filing of such Form 10-K until the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiariesdate hereof;
(ii) any Contract under which for the purchase of materials, supplies, goods, services, equipment or other assets that, during the fiscal year ended March 31, 2018, resulted in, or during the fiscal year ended March 31, 2019, is reasonably expected to result in, aggregate purchases or other spend by the Company or its Subsidiaries is lessee any Company Subsidiary of $1,000,000 or holds more, or operatesrequires the Company or any Company Subsidiary, in each caseafter the Closing Date, any tangible property (other than real property), owned by any other Person, except for any lease to purchase or agreement under which spend $5,000,000 or more over the aggregate annual rental payments do not exceed $500,000life of such Contract;
(iii) any Contract under which that relates to the creation, incurrence, assumption or guarantee of Indebtedness of the Company or its any Company Subsidiary in an amount in excess of $100,000 (except for such Indebtedness between the Company and any of the wholly owned Company Subsidiaries is lessor of or permits any third party to hold or operatebetween the wholly owned Company Subsidiaries, in each case, any tangible property (other than real property), owned or controlled guarantees by the Company of Indebtedness of any of the wholly owned Company Subsidiaries and guarantees by any of the Company Subsidiaries of Indebtedness of the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000other wholly owned Company Subsidiary);
(iv) any (A) joint ventureContract that involves any exchange-traded or over-the-counter swap, profit-sharingforward, partnershipfuture, collaborationoption, co-promotioncap, commercialization floor or research or development Contractcollar financial contract, or similar Contractany other interest-rate, in each casecommodity price, which requires, equity value or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)foreign currency protection contract;
(v) any Contract that (A) limits relates to the formation, creation, operation, management or purports to limitcontrol of a material partnership, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” joint venture or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closingarrangement;
(vi) any Contract requiring containing (A) any future capital commitment or capital expenditure (or series covenant limiting in any material respect the right of capital expenditures) by the Company or its any Company Subsidiary to engage in any line of business or to compete with any Person in any line of business or geographic area, (B) a “most favored nation” clause or other term providing preferential pricing or treatment to a third party, or (C) a right of first refusal or right of first offer or similar right or that limits the ability of the Company or any of the Company Subsidiaries in to sell, transfer, pledge or otherwise dispose of assets or any business with an amount aggregate value in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement100,000;
(vii) any Contract requiring the Company any capital commitment or its Subsidiaries to guarantee the Liabilities capital expenditures (including any series of any Person (other than the Company or a Subsidiaryrelated expenditures) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000600,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make with any loan, advanceSignificant Customer, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregateSignificant Supplier (other than, in an amount in excess of $200,000 or made any capital contribution to, or other investment ineach case, any Personnonmaterial purchase or sale order);
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedulecollective bargaining agreement or similar agreement with a labor union or representative;
(x) any Contract with Company Benefit Plan that provides for acceleration of any Person (A) pursuant to which equity incentive, or the Company or its Subsidiaries (or Parent or any payment of its Affiliates after the Closing) is or may be required to pay milestones, royalties severance or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right benefits upon termination of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Propertyemployment;
(xi) any Contract for that relates to the acquisition or disposition of any portion of the business, assets or business properties (whether by merger, sale of stock, sale of assets or otherwise) (A) for aggregate consideration in excess of $1,000,000 that was entered into on or after January 1, 2015 or (B) that otherwise contains material continuing rights or obligations of the Company or its Subsidiaries or for the acquisition by the any Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligationSubsidiary;
(xii) any settlement, conciliation Contract that contains any provision that limits or similar Contract restricts (Aor purports to limit or restrict) requiring monetary payments by the ability of the Company or its any of the Company Subsidiaries after to make distributions or declare or pay dividends in respect of their Equity Interests, in each case, other than the date articles of this Agreement, incorporation and bylaws (Bor equivalent organizational documents) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on of the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); andCompany Subsidiary;
(xiii) each collective bargaining agreement or other any Contract with that is between the Company or its any of the Company Subsidiaries, on the one hand, and any labor union, labor organization director or works council representing employees officer of the Company or its Subsidiariesthe Company Subsidiaries or any Person beneficially owning 5% or more of the outstanding Shares, on the other handhand (except for any Company Benefit Plan);
(xiv) any Contract settlement or similar agreement with any Governmental Authority or Order or Consent of a Governmental Authority to which the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries is subject involving future performance by the Company or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, the Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment)Subsidiaries;
(xv) any employmentmortgage, consultingpledge, bonussecurity agreement, commissions deed of trust or other Contract in respect of any indebtedness for borrowed money granting a Lien, other than a Permitted Lien, on any material property or asset of the Company or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;Company Subsidiary; and
(xvi) any employment Contract that is a license, royalty, settlement, pharmaceutical or consulting other collaboration agreement (excluding clinical trial agreements) or similar Contract with severancerespect to Intellectual Property (other than generally commercially available shrink wrap, change in control, retention clickware or similar arrangements, that will result in any obligation (absolute “off-the-shelf” software and Contracts pursuant to which a license of Intellectual Property is granted to or contingent) of by the Company or any Company Subsidiary that is incidental to the primary purpose of its Subsidiaries such Contract) that involved aggregate payments by or to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 any Company Subsidiary for the year ended March 31, 2018, or (B) is reasonably expected to involve aggregate payments by or to or from the Company or its Subsidiaries in excess any Company Subsidiary for the year ended March 31, 2019, of $1,500,000 500,000 or more, or over the life of the agreement andsuch Contract, in each case, that is not terminable by the applicable the Company of $1,000,000 or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticemore.
(b) With such exceptions that would not, individually or in the aggregate, reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect, (i) Each each Material Contract is valid valid, binding and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against respect to the Company or its and the Company Subsidiaries party thereto and, to the Knowledge of the Company’s Knowledge, each other party thereto, except as such enforceability (x) may be limited by the counterparties thereto (subject to effect of any applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting generally the enforcement of creditors’ rights generally and (y) is subject to the effect of general principles of equity (regardless of whether considered in a proceeding at Law or in equity), (ii) none of the Company or its Subsidiaries andany Company Subsidiary has received any written claim of breach, to violation or default under or cancellation of any Material Contract, and none of the Company’s Knowledge, the counterparties thereto are not Company or any Company Subsidiary is in material breach or violation of, or default under, any Material Contract and (iii) to the Knowledge of the Company, no event has occurred that (with other party is in breach or without due notice or lapse of time or both) would result in a material breach violation of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties theretoContract. The Company has made available to Parent true True and complete correct copies of all Material Contracts in effect as of have been made available to Parent prior to the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)this Agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Abaxis Inc), Merger Agreement (Zoetis Inc.)
Material Contracts. (a) Except for any Company Employee Benefit Plan and the Contracts filed as exhibits to or incorporated by reference in the Company SEC Documents filed or furnished since the date of the Company’s most recent Annual Report on Form 10-K that are available as of the date prior to the date of this Agreement, Section 3.13(a3.11(a) of the Company Disclosure Schedule contains sets forth a listing list of all the following Contracts described in clauses (i) through (xiii) below to whichwhich the Company or any of its Subsidiaries is, as of the date of this Agreement, a party or by which it or its assets or properties are bound (each Contract required to be set forth on Section 3.11(a) of the Company Disclosure Schedule, together with each of the Contracts entered into after the date of this Agreement that would be required to be set forth on Section 3.11(a) of the Company Disclosure Schedule if entered into prior to the execution and delivery of this Agreement, collectively, the “Company Material Contracts”). Except as set forth on Section 3.11(a) of the Company Disclosure Schedule, none of the Company or its Subsidiaries is a party to, or by which they are bound, other than a Company Benefit Planbound by, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) asset of the Company Disclosure Scheduleor any of its Subsidiaries is bound by, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):any:
(i) Contract under which the Company or any Contract relating to of its Subsidiaries has borrowed, guaranteed, assumed or incurred any Indebtedness for borrowed money (including any indenture, note or other instrument evidencing Indebtedness for borrowed money) having an outstanding or committed amount in excess of the Company or its Subsidiaries or to the placing of a $1,000,000 (other than intercompany financing arrangements);
(ii) Contract resulting in any Lien (other than a any Permitted Lien) on any material portion of the assets or properties of the Company or any of its Subsidiaries;
(iiiii) Contract providing for the Company or any of its Subsidiaries to make (or agreeing to make), directly or indirectly, any loan, advance, or assignment of payment to any person or to make any capital contribution to, or other investment in, any person (excluding any intercompany financing arrangements), in each case in excess of five hundred thousand dollars ($500,000), except where such advances are in respect of royalty payments made to content partners;
(iv) Contract providing for aggregate payments to or from the Company or any of its Subsidiaries in excess of two million and five-hundred thousand dollars ($2,500,000) in any calendar year, other than those that can be terminated without material penalty by the Company or its applicable Subsidiary upon ninety (90) days’ notice or less and can be replaced with a similar Contract on materially equivalent terms in the ordinary course of business, except where such payments are in respect of minimum guarantees on royalty payments made to content partners;
(v) Contract that limits or restricts the Company or any of its Subsidiaries (or after the Closing, Parent or any of its Affiliates) from (A) engaging or competing in any line of business or business activity in any jurisdiction or (B) acquiring any material product or asset or receiving material services from any person or selling any product or asset or performing services for any person;
(vi) any Contract under which the Company or any of its Subsidiaries is lessee of or holds or operates, in each case, any material tangible property (other than real property), owned by any other Person, except for person necessary to operate the business of the Company or any lease or agreement under which the aggregate annual rental payments do not exceed $500,000of its Subsidiaries;
(iiivii) any Contract under which the Company or any of its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by such of the Company or its Subsidiaries, except for any lease or agreement Contract under which the aggregate annual rental payments do not exceed two hundred and fifty thousand dollars ($200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts250,000);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(viviii) any Contract requiring any future capital commitment or capital expenditure (or series of capital commitments or expenditures) by the Company or any of its Subsidiaries in an amount in excess of one million dollars (A$1,000,000) $300,000 annually or one million dollars (B$1,000,000) $1,000,000 over the life term of the agreementContract;
(viiix) any Contract requiring the Company or any of its Subsidiaries to guarantee the Liabilities of any Person person (other than any other of the Company or its Subsidiaries) or pursuant to which any person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiaryof its Subsidiaries) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; andSubsidiaries;
(xviix) any material interest rate, currency, or other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.hedging Contracts;
(ixi) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract Contracts providing for indemnification by the Company or any of its Subsidiaries orSubsidiaries, to except for any such Contract that is entered into in the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies ordinary course of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).business;
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Getty Images Holdings, Inc.), Merger Agreement (Shutterstock, Inc.)
Material Contracts. (a) All 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, 2023 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 shall be deemed to have been made available to Parent.
(b) Section 3.13(a4.12(b) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to whichLetter sets forth, as of the date of this Agreementhereof, a true and complete list of, and the Company or its Subsidiaries 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 to which any of the Acquired Companies is a party or by which they any of its properties or assets are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):bound that:
(i) any Contract relating to Indebtedness for borrowed money is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its SubsidiariesExchange Act);
(ii) any Contract is required to be described pursuant to Item 404 of Regulation S-K promulgated under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000Securities Act;
(iii) involves (A) annual future expenditures or receipts by an Acquired Company of more than $20,000,000 or (B) annual aggregate payments by, or other consideration from, any Contract under which the Company or its Subsidiaries is lessor Acquired Companies of or permits any third party to hold or operatemore than $20,000,000, and, in each case, any tangible property case of (other than real propertyA) and (B), owned or controlled is not terminable by the an Acquired Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000convenience without material penalty;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivitynon-compete, “most favored nation” or similar provisions, obligations exclusivity provisions with respect to any line of business or restrictions or geographic area that (CA) contains any other provisions restricting or purporting to restrict restricts the ability business of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, Acquired Companies in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the including upon consummation of the transactions contemplated by this Agreement, termination or that otherwise restricts the lines of employment business conducted by the Acquired Companies or boththe geographic area in which the Acquired Companies may conduct business in any material respect, other than any Contracts that may be cancelled without material liability to an Acquired Company upon notice of ninety (90) days or less or (B) would restrict the business of Parent or its Affiliates (other than the Acquired Companies) or the geographic area in which Parent or its Affiliates (other than the Acquired Companies) may conduct business upon consummation of the transactions contemplated by this Agreement;
(v) constitutes or relates to an Indebtedness obligation for borrowed money of the Acquired Companies that either (A) has an outstanding principal amount as of the date hereof greater than $20,000,000 or (B) is secured, directly or indirectly, by a Company Property;
(vi) requires the Acquired Companies to purchase or sell, as applicable, equity interests of any Person or assets, including through a pending purchase or sale of assets, merger, consolidation or similar business combination transaction, that (together with all of the assets and properties subject to such requirement in such Contract) have a fair market value or purchase price in excess of $100,000,000;
(vii) relates to an acquisition, divestiture, merger or similar transaction that has continuing material indemnification, guarantee, “earn-out” or other contingent payment obligations on an Acquired Company;
(viii) except to the extent set forth in the Governing Documents of the Company’s Subsidiaries or the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ or the loan documents in effect as of the date hereof evidencing Indebtedness, contains covenants expressly limiting, in any material respect, the ability of the Acquired Companies to sell, transfer, pledge or otherwise dispose of any material assets or business of the Acquired Companies, taken as a whole;
(ix) except to the extent set forth in the Governing Documents of the Company’s Subsidiaries or the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ or the loan documents in effect as of the date hereof evidencing Indebtedness or any Material Company Lease, 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 a material portion of the equity interests or a material portion of the assets of any Person;
(x) sets forth the operational terms of a joint venture, partnership, limited liability company or strategic alliance of the Acquired Companies with or involving a third party;
(xi) calls for (A) 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 (B) annual aggregate payments by, or other consideration from, any of the Acquired Companies of more than $2,000,000;
(xii) relates to the settlement (or proposed settlement) of any pending or threatened Action, in writing, other than any settlement that is covered by insurance or indemnification, or provides solely for the payment of less than $10,000,000;
(xiii) pursuant to which any of the Acquired Companies, (A) receives a license of or other rights or interest with respect to any material Intellectual Property, other than off-the-shelf software, and other than any Contract entered into in the ordinary course of business for which the license of or grant of other right or interest with respect to such Intellectual Property is both on a non-exclusive basis and not the primary purpose of such Contract or (B) grants a license of or other rights or interest with respect to any material Intellectual Property owned by any Acquired Company other than non-exclusive licenses granted in the ordinary course of business;
(xiv) is a Fund Agreement; and
(xviixv) any other Contract the performance of which requires either (A) annual payments to or from the is a Material Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeLease.
(c) Each Contract in any of the categories set forth in Section 4.12(a) and (b) 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”.
(d) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Acquired Companies, taken as a whole, (i) Each each Material Contract is valid legal, valid, binding and binding enforceable on the each Acquired Company or its Subsidiaries, as applicablethat is a party thereto and, to the Knowledge of the Company’s Knowledge, the counterparties each other party thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries andeffect, to the Company’s Knowledge, the counterparties thereto (subject to applicable except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting generally the enforcement of creditors’ rights generally and subject to by general principles of equity), equity (regardless of whether enforceability is considered in a proceeding in equity or at Law) and (ii) each Acquired Company has performed all obligations required to be performed by it prior to the Company or its Subsidiaries date hereof under each Material Contract and, to the Knowledge of the Company’s Knowledge, each other party thereto has performed all obligations required to be performed by it under such Material Contract prior to the counterparties thereto are not date hereof. None of the Acquired Companies nor, to the Knowledge of the Company, any other party thereto, is in material breach or violation of, or default under, any Material Contract Contract, and (iii) no event has occurred that (that, with or without due notice or lapse of time or both) , would result constitute a violation, breach or default under any Material Contract, except where in each case such breach, violation or default, individually or in the aggregate, would not reasonably be expected to have a material breach of, Company Material Adverse Effect. None of the Acquired Companies has received notice of any violation or default under, or currently owes any termination, cancellation or other similar fees or any liquidated damages with respect to, any Material Contract by 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. Except as, individually or its Subsidiaries in the aggregate, would not have, and would not reasonably be expected to have a Company Material Adverse Effect, there are no disputes pending, or, to the Knowledge of the Company’s Knowledge, threatened with respect to any Material Contract, and none of the Acquired Companies has received any written notice of the intention of any other party to a Material Contract to terminate for default, convenience or otherwise any Material Contract.
(e) Section 4.12(e) of the Company Disclosure Letter lists each management agreement pursuant to which any third party manages or operates any of the Company Properties on behalf of any Acquired Company, and describes the property that is subject to such management agreement, the counterparties theretoapplicable Acquired Company that is a party, the date of such management agreement and each material amendment, guaranty or other agreement binding on the applicable Acquired Company and relating thereto (collectively, the “Management Agreements”). The Company has made available to Parent true and complete copies of all Material Contracts in effect Management Agreements as of the date hereof (other than purchase ordershave been made available to Parent. As of the date hereof, invoiceseach Management Agreement is valid, binding and similar confirmatory or administrative documents that are ancillary in full force and effect as against the applicable Acquired Company and, to the main contractual relationship between Knowledge of the parties Company, as against the other party thereto. None of the Acquired Companies owes any termination, cancellation or other similar fees or any liquidated damages to a particular Contract any third-party manager or group of Contracts and operator, except for fees or damages that, individually or in each casethe aggregate, do would not contain any material executory or continuing terms, conditions, obligations or rights)reasonably be expected to have a Company Material Adverse Effect.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Rithm Capital Corp.), Merger Agreement (Paramount Group, Inc.)
Material Contracts. (a) Section 3.13(a3.8(a) of the Company Disclosure Schedule contains Schedules sets forth a listing list of all Contracts described in clauses (i) through (xiii) below the following Contracts, other than the Employee Benefit Plans, to whichwhich the Company or any of its Subsidiaries is, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are each Contract required to be set forth on Section 3.13(a3.8(a) of the Company Disclosure ScheduleSchedules, together with each of the Contracts entered into after the date of this Agreement that would be required to be set forth on Section 3.8(a) of the Company Disclosure Schedules if entered into prior to the execution and delivery of this Agreement, collectively, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or any of its Subsidiaries or to the placing of a Lien (other than a any Permitted Lien) on any material assets or properties of the Company or any of its Subsidiaries;
(ii) any Contract under which the Company or any of its Subsidiaries is lessee of or holds or operates, in each case, any material tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or any of its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or any of its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000500,000;
(iv) any (A) Contract for any material joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization collaboration or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)strategic alliance;
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of 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 operations of Parent Priveterra or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions restrictions, or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or any of its Subsidiaries to sell, manufacture, develop, commercialize, test or research productsthe Company Products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent Priveterra or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or any of its Subsidiaries in an amount in excess of (A) $300,000 annually 500,000 annually, or (B) $1,000,000 1,500,000 over the life of the agreement;
(vii) any Contract requiring the Company or any of its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiaryany of its Subsidiaries, in each case in excess of $200,000500,000;
(viii) any Contract under which the Company or any of its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person, in each case in excess of $500,000;
(ix) any Contract required to be disclosed on Section 3.19 3.20 of the Company Disclosure ScheduleSchedules;
(x) any Contract with any Person (A) pursuant to which the Company or any of its Subsidiaries (or Parent Priveterra or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events events, in each case, relating to Company Products, or (B) under which the Company or any of its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Company Business Intellectual Property;
(xi) any Contract (A) for the employment or engagement of any Key Employee of the Company or any of its Subsidiaries, or (B) providing for any Change of Control Payment of the type described in clause (a) of the definition thereof;
(xii) any Contract (A) executed with any current director, manager, officer, employee, Contingent Worker or other individual service provider of the Company or any of its Subsidiaries that provides for severance benefits, or (B) entered into by the Company or any of its Subsidiaries that constitutes a collective bargaining agreement or any other agreement executed between the Company or its Subsidiary, as applicable, and a union or similar organization;
(xiii) any Contract for the disposition of any material portion of the assets or business of the Company or any of its Subsidiaries or for the acquisition by the Company or any of its Subsidiaries of the material assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course ordinary course of Businessbusiness), or under which the Company or any of its Subsidiaries has any continuing obligation with respect to an “earn-out,” ”, contingent purchase price or other contingent or deferred payment obligation;
(xiixiv) any Contract pursuant to which the Company or any of its Subsidiaries (A) obtains any right to use, or covenant not to be sued under, any Intellectual Property Right (other than any license for Off-the-Shelf Software), or (B) grants any right to use, or covenant not to be sued under, any Intellectual Property Right (other than non-exclusive licenses granted in the ordinary course of business consistent with past practice);
(xv) any settlement, conciliation or similar Contract (A) requiring monetary the performance of which would be reasonably likely to involve any payments by the Company or its Subsidiaries after the date of this AgreementAgreement by the Company or any of its Subsidiaries, (B) with a Governmental Authority Entity or which relates to alleged criminal wrongdoing, (C) that imposes imposes, at any time in the future, any material, non-monetary obligations on the Company or any of its Subsidiaries (or Parent Priveterra or any of its Affiliates after the Closing); and
, or (xiiiD) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of which requires the Company or any of its Subsidiaries to make any payment accept or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or bothconcede material injunctive relief; and
(xviixvi) any other Contract the performance of which requires either (A) annual payments to or from by the Company or any of its Subsidiaries in excess of $300,000 500,000, or (B) aggregate payments to or from by the Company or any of its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries Subsidiary, as applicable, without penalty upon less than thirty sixty (3060) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its SubsidiariesSubsidiary, as applicable, and, to the knowledge of the Company’s Knowledge, the counterparties counterparty thereto, and is in full force and effect effect, and enforceable in accordance with its terms against (ii) the Company or and its Subsidiaries and, to the knowledge of the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcythereto, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach ofContract, or default under, any Material Contract by the Company or its Subsidiaries orand, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as knowledge of the date hereof (other than purchase ordersCompany, invoicesthere are no facts or circumstances which would, and similar confirmatory or administrative documents that are ancillary which would reasonably be expected to, lead to the main contractual relationship between the parties to a particular Contract such breach or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)default.
Appears in 2 contracts
Sources: Business Combination Agreement (Strathspey Crown Holdings Group, LLC), Business Combination Agreement (Priveterra Acquisition Corp.)
Material Contracts. (a) Section 3.13(a) As of the Company Disclosure Schedule contains a listing of all Contracts described in clauses date hereof:
(i) through (xiii) below to which, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of (other than pursuant to Clause (I), which the Contracts listed on Section 3.13(aparties agree are Material Contracts) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money following Contracts of the Company or and its Subsidiaries (excluding any Contract that has expired or terminated in accordance with its terms and under which no party has any continuing rights or obligations other than those Contracts that either party thereto could reasonably claim has been extended or renewed as a result of the course of conduct of the parties thereto) (the “Material Contracts”) have been previously provided to the placing Backstop Purchasers and are available in the Dataroom as of the date hereof, and a Lien list of each such Contract (other than pursuant to Clause (I), which the parties agree are Material Contracts) is set forth in the Disclosure Schedule:
(A) Contracts that would be considered a Permitted Lienmaterial contract pursuant to Item 601(b)(10) on any material assets of Regulation S-K promulgated by the Commission, had the Company been the registrant referred to in such regulation;
(B) Contracts entered into after September 1, 2009 for (x) capital expenditures or properties the acquisition or construction of fixed assets, or (y) mergers, combinations, consolidations, reorganizations, restructurings, recapitalizations, acquisitions or repurchases involving the Company or any of its Subsidiaries, other than internal restructurings or such Contracts entered into in the ordinary course of business, or not material to the business of the Company, or not in excess of $10,000,000;
(iiC) any Contract Contracts under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains Subsidiaries has borrowed any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third partiesmoney from, or to solicit issued any potential employee note, bond, debenture or customerother evidence of indebtedness to, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiaryperson, in each case in excess of $200,0001,000,000 and the Company hereby represents and warrants that the aggregate amount of indebtedness incurred pursuant to such Contracts that are not Material Contracts does not exceed $10,000,000, other than any such Contract between or among any of the Company and any of its Subsidiaries;
(viiiD) Contracts (including any Contract under which the Company so called take or its Subsidiaries has, directly pay or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (Bkeepwell agreements) under which the Company or any of its Subsidiaries grants has directly or indirectly guaranteed indebtedness, liabilities or obligations of any person, including the Company or another one of its Subsidiaries (in each case other than endorsements for the purpose of collection in the ordinary course of business), in each case in excess of $1,000,000 and the Company hereby represents and warrants that the aggregate amount of such guarantees incurred pursuant to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Propertysuch Contracts that are not Material Contracts does not exceed $10,000,000;
(xiE) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or Contracts under which the Company or any of its Subsidiaries has agreed to indemnify any continuing obligation person for any liabilities that is material to the Company and its Subsidiaries, taken as a whole (with respect to an “earn-out,” contingent purchase price which the Company has continuing obligations as of the date hereof), other than (x) payment indemnities of amounts less than $10,000,000, (y) any Contracts providing for indemnification of customers or suppliers, or (z) any Contracts providing for indemnification of other contingent or deferred payment obligationPersons entered into in the ordinary course of business;
(xiiF) any settlementMaterial partnership, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this AgreementJoint Venture, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement shareholders’ or other Contract similar Contracts with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other handPerson;
(xivG) All Contracts with any Contract with Person containing any provision or covenant (x) prohibiting or limiting the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) ability of the Company or any of its Subsidiaries to make engage in any payment material business activity, (y) imposing any material limitation on competition with any Person or incur solicitation of any Liability material customer or material client, or (z) imposing any material prohibition on the ability of any person to compete with the Company or any of its Subsidiaries, which in each case are material to the Company and its Subsidiaries, taken as a result whole, except for such Contracts which may be cancelled without material liability to the Company or any of the consummation of the transactions contemplated by this Agreement, termination of employment or both; andits Subsidiaries upon less than 90-days notice;
(xviiH) Contracts (other than information technology contracts) in which the Company or any of its Subsidiaries have agreed to an exclusive relationship which is material to the business with a potential supplier, service provider or customer in excess of $10,000,000;
(I) Contracts with any Material Customer;
(J) Any other Contract (including any Contract for the performance future purchase of which requires either (Amaterials, supplies or equipment) material to the business that has or that the Company reasonably expects to have an aggregate future annual liability or annual payments to or from any person (other than by the Company or any of its Subsidiaries to any of the Company’s Subsidiaries or the Company, respectively) in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and10,000,000, in each case, that is not terminable by the applicable the Company or any of its Subsidiaries without penalty upon by notice of not more than ninety (90) days for a cost of less than thirty $1,000,000 and is not entered in the ordinary course of business; or
(30K) days’ prior written noticeAny Contract with a Related Party.
(iii) Each Material Contract that shall survive the Bankruptcy Cases is valid and binding on the Company or its Subsidiaries, as applicable, and, to the Knowledge of the Company’s Knowledge, the counterparties on each other person party thereto, and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect that would not, individually or in the aggregate, have a Material Adverse Effect. Other than those caused as a result of the filing of the Bankruptcy Cases, neither the Company nor any of its Subsidiaries is in breach or default of any Material Contract to which it is a party and enforceable which shall survive the Bankruptcy Cases, except as has not had and would not reasonably be expected to have, individually or in accordance the aggregate, a Material Adverse Effect. To the Knowledge of the Company, no party to any Material Contract has repudiated any material provision thereof or terminated any Material Contract, which repudiation or termination would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. No Material Contract provides any party thereto (other than the Company or its Subsidiaries) with its terms against any right to access any premises of the Company or its Subsidiaries and, to remove or otherwise obtain any property of the Company’s Knowledge, Company or any of its Subsidiaries from such premises without the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement consent of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries andSubsidiaries, which removal or obtaining of property would reasonably be expected to have, individually or in the Company’s Knowledgeaggregate, the counterparties thereto are not in material breach of, or default under, any a Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Adverse Effect.
Appears in 2 contracts
Sources: Commitment Agreement (Cooper-Standard Holdings Inc.), Commitment Agreement
Material Contracts. (a) Section 3.13(a) of Except as set forth in the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below SEC Reports filed prior to which, as of the date of this AgreementAgreement or Schedule 3.17, neither the Company or nor any of its Subsidiaries is a party to or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):bound by:
(i) any Contract relating to Indebtedness for borrowed money "material contract" (as defined in Item 601(b)(10) of Regulation S-K of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its SubsidiariesSEC);
(ii) any Contract under which contract or agreement for the purchase of materials or personal property from any supplier or for the furnishing of services to the Company or any of its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the that individually involves future aggregate annual rental payments do not exceed by the Company or any of its Subsidiaries of $500,000500,000 or more;
(iii) any Contract under which contract or agreement for the Company sale, license or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property lease (other than real property), owned or controlled as lessor) by the Company or any of its Subsidiaries of services, materials, products, supplies or other assets, owned or leased by the Company or any of its Subsidiaries, except for any lease or agreement under which the that individually involves future aggregate annual rental payments do not exceed to the Company or any of its Subsidiaries of $200,000500,000 or more;
(iv) any (A) joint venturecontract, profit-sharing, partnership, collaboration, co-promotion, commercialization agreement or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments instrument relating to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract evidencing indebtedness for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) borrowed money of the Company or any of its Subsidiaries to make any payment in the amount of $250,000 or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; andmore;
(xviiv) any non-competition agreement or any other Contract agreement or obligation which purports to limit in any material respect the performance manner in which, or the localities in which, the business of which requires either (A) annual payments to or from the Company or any of its Subsidiaries in excess may be conducted;
(vi) any voting or other agreement governing how any shares of $300,000 Common Stock shall be voted; or
(vii) any contract, agreement or (B) aggregate payments arrangement to allocate, share or from otherwise indemnify for Taxes. The foregoing contracts and agreements to which the Company or any of its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the a party or are bound are collectively referred to herein as "Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeMaterial Contracts."
(ib) Each Except as set forth on Schedule 3.17(b), each Company Material Contract is valid and binding on the Company or any of its Subsidiaries, as applicable, to Subsidiaries of the Company’s Knowledge, the counterparties thereto, Company and is in full force and effect effect, and enforceable in accordance with its terms against the Company or any of its Subsidiaries andof the Company, as applicable, has performed all obligations required to be performed by it to date under each Company Material Contract, except where such noncompliance or nonperformance, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. The Company does not know, nor has given or received notice of, any violation or default under (nor, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement knowledge of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, does there exist any condition which with the counterparties thereto are not passage of time or the giving of notice or both would result in material breach of, such a violation or default under) any Company Material Contract, any except where such violations or defaults, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (D&b Acquisition Sub Inc), Merger Agreement (Dave & Busters Inc)
Material Contracts. (a) Section 3.13(a2.15(a) of the Company Disclosure Schedule contains Letter sets forth a listing complete and accurate list of all Contracts described in clauses written or oral contracts, agreements, notes, bonds, indentures, mortgages, pledges, guarantees, options, leases, licenses, sales and purchase orders, warranties, commitments and other instruments of any kind (i) through (xiii) below each a "CONTRACT"), to which, as of the date of this Agreement, which the Company or its Subsidiaries any Subsidiary is a party or by which they are the Company or any Subsidiary, or any of their respective assets and properties, is otherwise bound, other than a Company Benefit Planand which Contract is currently in effect or has future obligations or unfulfilled past or present obligations (or in the case of clause (i) below, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations any Subsidiary was a party or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of by which the Company Disclosure Scheduleor any Subsidiary was bound during the relevant twelve month period), as follows (each a "MATERIAL CONTRACT" and, collectively, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
"MATERIAL CONTRACTS"): (i) any each Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) Subsidiary pursuant to which the Company or its Subsidiaries any Subsidiary received (or Parent was entitled to receive) or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries paid (or Parent or any of its Affiliates after the Closing); and
(xiiiwas purportedly obligated to pay) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
200,000 in the twelve (xvi12) any employment or consulting month period ended September 30, 2004 (provided such Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts remains in effect as of the date hereof hereof) and each customer Contract in effect on the date of this Agreement under which the Company or any Subsidiary received in the twelve (12) month period ended September 30, 2004 or is entitled to receive thereafter more than $200,000; (ii) each Contract that requires payment by or to the Company or any Subsidiary after September 30, 2004 of more than $200,000; (iii) each Contract that contains non-competition restrictions, including any restrictions relating to the conduct of the Company's or a Subsidiary's business or the sale of the Company's or any Subsidiary's products or any geographic restrictions, in any case that would prohibit or restrict the Surviving Company or any of its affiliates from conducting the business of the Company or any Subsidiary as presently conducted or that requires any consent or other action by any person for, or will be subject to default, termination, repricing or other renegotiation or cancellation because of, the transactions contemplated hereby; (iv) each Contract relating to the Company's or any Subsidiary's channel sales with distributors; (v) each Contract of the Company or any Subsidiary relating to, and evidences of, indebtedness for borrowed money or the deferred purchase price of property (whether incurred, assumed, guaranteed or secured by any asset); (vi) each partnership, joint venture or other similar Contract or arrangement to which the Company or any Subsidiary is a party or by which it is otherwise bound; (vii) each Contract that requires the Company or any Subsidiary to grant "most favored customer" pricing to any other person; (vii) each fidelity or surety bond or completion bond; (ix) each Contract pursuant to which the Company or any Subsidiary has agreed to provide liquidated damages for failure to meet performance obligations or quality milestones (except to the extent that the amount of such liquidated damages, together with the liquidated damages potentially payable pursuant to any other Contract, do not exceed an aggregate of $200,000); (x) each Contract pursuant to which the Company or any Subsidiary has agreed to provide indemnification or guaranty to a third party (other than purchase ordersthis Agreement and other than an indemnification or guaranty pursuant to the Company's standard form license agreement in the form provided to Parent prior to the date hereof); (xi) each Contract relating to the disposition or acquisition of assets, invoicesproperty or any interest in any business enterprise outside the ordinary course of the Company's or any Subsidiary's business; (xii) each distribution, joint marketing or development Contract and (xiii) each Contract that is otherwise material to the Company and Subsidiaries, taken as a whole.
(b) Each Material Contract is a legal, valid and binding obligation of the Company or the Subsidiary that is a party thereto and, to the Company's knowledge, each other person who is a party thereto, enforceable against the Company or such Subsidiary and, to the Company's knowledge, each such other person in accordance with its terms, and similar confirmatory neither the Company or administrative documents that are ancillary any Subsidiary nor, to the main contractual relationship between the parties to a particular Contract or group of Contracts and thatCompany's knowledge, any other party thereto is in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)default thereunder.
Appears in 2 contracts
Sources: Merger Agreement (Cadence Design Systems Inc), Merger Agreement (Cadence Design Systems Inc)
Material Contracts. (a) Section 3.13(a) As of the date hereof, except for this Agreement and the agreements filed as exhibits to the Company SEC Documents or set forth in the Company Disclosure Schedule, none of the Company Disclosure Schedule contains a listing nor any of all Contracts described in clauses (i) through (xiii) below to which, as of the date of this Agreement, the Company or its Subsidiaries is a party to or bound by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including has rights under any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, following Contracts to the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):extent currently in effect:
(i) any employment, contractor or consulting Contract relating to Indebtedness for borrowed money with any executive officer or other employee of the Company earning an annual salary in excess of $200,000 or its Subsidiaries or to member of the placing Company’s Board of a Lien (Directors, other than a Permitted Lien) on any material assets or properties of those that are terminable by the Company or any of its Subsidiaries on no more than 30 days notice without liability or financial obligation to the Company or any of its Subsidiaries, or any collective bargaining agreement or contract with any labor union or other employee organization;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operatesplan, in each caseincluding, without limitation, any tangible property Company Plan or employee agreement, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement (other than real propertyeither alone or upon the occurrence of additional or subsequent events) or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement (either alone or upon the occurrence of additional or subsequent events), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under Contracts in connection with which or pursuant to which the Company or and its Subsidiaries is lessor of reasonably likely to spend or permits any third party to hold or operatereceive, in each casethe aggregate, any tangible property (more than $200,000 during the current fiscal year or during the next fiscal year, other than real property), owned or controlled by as are entered into the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000ordinary course of business consistent with past practice;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, Contracts pursuant to which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or any of its Subsidiaries in excess has granted a right of $1,000,000 over the life of the Contract first refusal, first negotiation, most favored nation pricing or (B) other Contract with respect to material Company Licensed Intellectual Property (similar terms, preferred pricing, exclusive sales, distribution, marketing or other than any Non-Scheduled Contracts)exclusive rights1;
(v) any Contract that Material partnership or joint venture agreements;
(Avi) limits Contracts for the acquisition, sale or purports to limit, in any lease of material respect, the freedom properties or assets of the Company or its Subsidiaries to engage (by merger, purchase or compete in any line sale of business assets or with any Person stock or in any area or that would so limit or purport to limitotherwise), in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over 200,000 in the life aggregate, other than sales of inventory in the agreementordinary course of business;
(vii) any Contract requiring loan or credit agreements, deeds of trust, mortgages, promissory notes, indentures or other Contracts evidencing or securing indebtedness for borrowed money by the Company or any of its Subsidiaries Subsidiaries, or any Contracts with respect to guarantee the Liabilities of any Person (swap, forward, futures, warrant, option or other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000derivative transaction;
(viii) any Contract under which Contracts providing for, (a) indemnification or guaranty, other than as are entered into in the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advanceordinary course of business, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or guaranty other than as entered into in the aggregate, ordinary course of business or as set forth in an amount in excess of $200,000 or made any capital contribution toclause (b) hereof, or other investment in, (b) any Personguaranty of indebtedness;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which Contracts between the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor unioncurrent or former 5% or greater stockholder, labor organization director, officer or works council representing employees other Affiliate of the Company or any of its SubsidiariesSubsidiaries (or any Affiliate of such Person), on the other hand;
(xivx) any Contract with Contracts that purport to limit, curtail or restrict the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) ability of the Company or any of its Subsidiaries to make compete in any payment material respect in any geographic area or incur line of business, or to acquire, own, operate, sell, transfer, pledge or otherwise dispose of any Liability as a result assets or to hire or solicit for hire for employment of any individual or group;
(xi) Contracts pursuant to which the Company or its Subsidiaries grant to or receive from any person the right to use any Intellectual Property material to the conduct of the consummation Business, other than as relates to generally available commercial or ‘shrinkwrap’ software;
(xii) settlement agreements which contain continuing material obligations of the transactions contemplated Company or any of its Subsidiaries;
(xiii) any Contracts, or groups of Contracts with a Person (or group of affiliated Persons), the termination or breach of which would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect;
(xiv) any Real Property Lease;
(xv) Contracts that would be required to be filed as an exhibit to an Annual Report on Form 10-K if such report were required to be filed by this Agreement, termination the Company with the SEC on the date hereof;
(xvi) confidentiality agreements with the Company that would prohibit the Company from complying with any of employment the terms of Section 6.3(b) or bothSection 6.3(c) if the counterparty to such confidentiality agreement were to make a Superior Proposal or Takeover Proposal (with the name of the counterparty thereof redacted to extent required by the terms of such confidentiality agreement); and
(xvii) commitments and agreements to enter into any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement andforegoing (such Contracts, in each case, that is not terminable by and including the applicable the Contracts filed as exhibits to Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s KnowledgeSEC Documents, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any “Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rightsContracts”).
Appears in 2 contracts
Sources: Merger Agreement (Plethico Pharmaceuticals Ltd.), Merger Agreement (Nutra Acquisition CO Inc.)
Material Contracts. (a) Except for each Contract disclosed in Section 3.13(a) 3.10 of the Company Disclosure Schedule contains Schedules (each, a listing of all Contracts described in clauses “Material Contract”), neither the Company nor any Subsidiary is a party to or bound by:
(i) (A) any real property lease or (B) any personal property lease where the aggregate payments due under such personal property lease are $150,000 or more;
(ii) any Contract (A) for the purchase of materials, supplies, goods, services, equipment or other assets (other than Contracts with third-party managers and customer or supplier purchase orders entered into in the ordinary course of business) (1) under which the Company and/or the Subsidiaries made payments in excess of $175,000 in the twelve (12) months ended June 30, 2017 or (2) that contains any minimum or “take or pay” purchase or volume requirements, or (B) with a third-party manager under which the Company and/or the Subsidiaries made payments in excess of $350,000 in the twelve (12) months ended June 30, 2017;
(iii) any sales, distribution, license or other Contract providing for the sale or license by the Company and/or any Subsidiary of materials, supplies, goods, products, services, equipment or other assets (A) under which the Company and/or the Subsidiaries were paid in excess of $250,000 (net of any fees paid through to third-party managers) in the twelve (xiii12) below months ended June 30, 2017; (B) that requires the Company and/or the Subsidiaries to whichsell any materials, supplies, goods, products, services, equipment or other assets exclusively to any Person; or (C) that obligates the Company and/or the Subsidiaries to provide any Person with equal or preferred pricing terms as compared to the pricing terms offered by the Company and/or the Subsidiaries to any other Person, including any Contract with any “most favored nation” pricing provision;
(iv) any partnership, joint venture or other similar Contract or arrangement;
(v) any employment Contract providing for base salary or base fees in excess of $200,000 on an annualized basis, and any severance, retention or change in control Contract with any employee, individual independent contractor or individual consultant of the date Company or any Subsidiary (other than ordinary course offer letters);
(vi) any Contract relating to the acquisition or disposition of this Agreementany capital stock or other equity interests, business or material assets (whether by merger, sale of stock, sale of assets or otherwise) under which payment obligations or other material obligations (absolute or contingent) of the Company or its Subsidiaries is a party or by which they are boundremain outstanding, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):indemnification obligations;
(ivii) any Contract relating to Indebtedness for borrowed money of the Company (whether incurred, assumed, guaranteed or its Subsidiaries secured by any asset) or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(iiviii) any agency, dealer, sales representative or marketing Contract that provides for either (A) annual payments to the Company and/or the Subsidiaries of $100,000 or more or (B) aggregate payments to the Company and/or the Subsidiaries of $500,000 or more;
(ix) any Contract (excluding non-exclusive licenses for commercial off-the-shelf computer software) pursuant to which the Company or any Subsidiary (A) obtains the right to use, or a covenant not to be sued under, any Intellectual Property Right or (B) grants the right to use, or a covenant not to be sued under, any Intellectual Property Right (excluding non-exclusive licenses granted in the ordinary course of business to customers);
(x) any Contract, commitment, arrangement or understanding with any Related Party;
(xi) any Contract under which the Company or its Subsidiaries is lessee have, directly or indirectly, made any advance, loan, or extension of credit to, or holds capital contribution or operatesother investment in, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(vxii) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person or in any geographical area or that would so limit or purport to limit, in any material respect, otherwise restricts the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to selldevelopment, manufacture, developmarketing, commercialize, test or research products, directly or indirectly through third partiesdistribution, or to solicit any potential employee sale of the Company’s or customer, in each case, in any material respect its Subsidiaries’ products or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closingservices;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(xxiii) any Contract with any Person Governmental Authority (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestonesother than, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition avoidance of doubt, any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of BusinessPermit), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract that grants any Person a right of first offer or right of first refusal with respect to the Common Stock or any capital stock of any Subsidiary of the Company or its Subsidiaries, on the one hand, and an exclusive dealing or similar exclusivity provision; and
(xv) any officer, director, manager, stockholder, member of an Affiliate of settlement or similar Contracts with respect to Proceedings involving the Company or its Subsidiaries under which there are continuing obligations or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) Liabilities on the part of the Company or any of its Subsidiaries to make any payment or incur any Liability Subsidiaries.
(b) Except as a result set forth on Section 3.10 of the consummation Company Disclosure Schedules, each Material Contract is a valid and binding agreement of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiariesa Subsidiary, as applicablethe case may be, and, to the Knowledge of the Company’s Knowledge, the counterparties other party or parties thereto, and is in full force and effect effect, and enforceable none of the Company, any Subsidiary or, to the Knowledge of the Company, any other party thereto is in accordance with its default or breach in any material respect under the terms against the Company or its Subsidiaries of any such Material Contract, and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement Knowledge of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event or circumstance has occurred that (that, with or without due notice or lapse of time or both) , would result in constitute an event of default thereunder, give rise to a material breach ofright of termination, cancellation or default under, acceleration of any Material Contract by right or obligation of the Company or a Subsidiary, and the Merger and the transactions contemplated by this Agreement will not result in any material change to the terms thereof. Neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company’s Knowledge, oral notice from any counterparty to a Material Contract that such counterparty intends to terminate, not renew, or materially amend the counterparties theretoterms of such Material Contract, and neither the Company nor any of its Subsidiaries has given any such written or oral notice to any counterparty to a Material Contract. The Neither the Company nor any of its Subsidiaries has waived any of its material rights under any Material Contract. True and complete copies of each Material Contract have heretofore been made available to Parent true and complete copies (subject to customary redaction of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rightscompetitively sensitive pricing information).
Appears in 2 contracts
Sources: Merger Agreement (Actua Corp), Merger Agreement (Envestnet, Inc.)
Material Contracts. Except for the Existing Senior Secured Debt Documents and the other agreements set forth on Schedule 6.18 as of the Closing Date, there are no (a) Section 3.13(aemployment agreements covering the management of any Obligor, (b) collective bargaining agreements or other similar labor agreements covering any employees of the Company Disclosure Schedule contains a listing of all Contracts described in clauses any Obligor, (ic) through (xiii) below agreements for managerial, consulting or similar services to which, as of the date of this Agreement, the Company or its Subsidiaries which any Obligor is a party or by which they are it is bound, (d) agreements regarding any Obligor, its assets or operations or any investment therein to which any of its equity holders is a party or by which it is bound, (e) real estate leases, Intellectual Property licenses or other lease or license agreements to which any Obligor is a party, either as lessor or lessee, or as licensor or licensee (other than a Company Benefit Planlicenses arising from the purchase of “off the shelf” products), and that are not expired (f) customer, distribution, marketing or have not been terminated and not including any Contracts pursuant supply agreements to which any Obligor is a party, in each case with respect to the Company has with no material outstanding preceding clauses (a) through (e) requiring payment of more than $250,000 in any year, (g) partnership agreements to which any Obligor is a general partner or executory obligations joint venture agreements to which any Obligor is a party, (h) third party billing arrangements to which any Obligor is a party, or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating other agreements or instruments to Indebtedness for borrowed money which any Obligor is a party, and the breach, nonperformance or cancellation of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contractwhich, or similar Contractthe failure of which to renew, in each case, which requires, or would could reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life have a Material Adverse Effect. Each of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, Material Contracts is in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed full force and effect on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, hereof and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, the Transaction Documents will not give rise to a right of termination in favor of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof party (other than purchase ordersany Obligor) to any Material Contract, invoices, and similar confirmatory or administrative documents that are ancillary except for such Material Contracts the noncompliance with which would not reasonably be expected to the main contractual relationship between the parties to have a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Material Adverse Effect.
Appears in 2 contracts
Sources: Note Purchase Agreement (Staffing 360 Solutions, Inc.), Note Purchase Agreement (Staffing 360 Solutions, Inc.)
Material Contracts. (a) Section 3.13(aExcept for this Agreement, the Company Plans or documents filed as an exhibit (or incorporated by reference) to the Company’s Annual Report on Form 10-K with the SEC, or as set forth in Part 2.11(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to whichSchedule, as of the date of this Agreement, neither the Company nor any Company Subsidiary is a party to or bound by any Contract (i) constituting a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC); (ii) under which expected receipts or expenditures exceeds $250,000 in the current or any future calendar year; (iii) evidencing indebtedness for borrowed or loaned money of $250,000 or more, including guarantees of such indebtedness by the Company or its Subsidiaries is a party or by which they are boundany Company Subsidiary, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which those guarantees by the Company has with no material outstanding or executory obligations or Liabilities (such Contracts of real property leases of certain Company Subsidiaries as are required to be set forth on Section 3.13(aidentified in Part 2.11(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies ; (iv) creating or relating to any partnership or joint venture or any sharing of the Contracts listed on Section 3.13(a) of profits or losses by the Company Disclosure Schedule have previously been made available to Parent or any Company Subsidiary with any third party; (v) containing covenants binding upon the Company or any of its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money Affiliates that materially restricts the ability of the Company or any of its Subsidiaries Affiliates (or which, following the consummation of the Merger could materially restrict the ability of the Surviving Corporation or its Affiliates) to compete in any business that is material to the placing Company and its Affiliates, taken as a whole, as of a Lien (other than a Permitted Lien) on any material assets the date of this Agreement, or properties that restricts the ability of the Company or any of its Subsidiaries;
Affiliates (ii) any Contract under which or which, following the Company consummation of the Merger, would restrict the ability of the Surviving Corporation or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iiiAffiliates) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
geographic area; (vi) relating to the lease or license of any Contract requiring any future capital commitment material asset, including material Intellectual Property or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
Trademarks; (vii) any Contract requiring constituting a franchise agreement entered into between a franchisee and the Company and one or more of its Subsidiaries to guarantee the Liabilities of any Person (other than the Company Subsidiaries; or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which expected receipts or expenditures exceed $200,000 and that has a term of more than one year which cannot be terminated on written notice of sixty (60) days or less without payment of penalty or premium (all contracts of the type described in this Section 2.11(a), the “Company Material Contracts”).
(b) Neither the Company nor any Company Subsidiary is in material breach of or its Subsidiaries hasdefault under the terms of any Company Material Contract. To the Knowledge of the Company, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment no other party to any Person outside Company Material Contract is in breach of or default under the Ordinary Course terms of Business orany Company Material Contract where such breach or default would have, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any a Material Adverse Effect. Each Company Material Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business a valid and binding obligation of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under Subsidiary which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); is party thereto and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Knowledge of the Company’s Knowledge, the counterparties of each other party thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries andeffect, to the Company’s Knowledge, the counterparties thereto except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting generally the enforcement of now or hereafter in effect, relating to creditors’ rights generally and subject to general principles of equity), (ii) the Company or its Subsidiaries and, equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as discretion of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain court before which any material executory or continuing terms, conditions, obligations or rights)proceeding therefor may be brought.
Appears in 2 contracts
Sources: Merger Agreement (Smith & Wollensky Restaurant Group Inc), Agreement and Plan of Merger (Smith & Wollensky Restaurant Group Inc)
Material Contracts. (a) Section 3.13(a) As of the date hereof, there are no Contracts to which it or any of its Subsidiaries is a party (other than Reinsurance Contracts, Real Property Leases and Benefit Plans): (i) 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 Securities Act or the Exchange Act, (ii) that contain any provisions restricting the ability of it or any of its Subsidiaries, or which, following the consummation of the Amalgamation, would restrict the ability of Axis or any of its Subsidiaries or PRE or any of its Subsidiaries or any of their successors, including the Amalgamated Company Disclosure Schedule contains and its Subsidiaries, to compete or transact in any business or with any Person or in any geographic area or grants a listing right of all exclusivity to any Person, (iii) pursuant to which any indebtedness of it or any of its Subsidiaries is outstanding or may be incurred in excess of $50 million or pursuant to which it or any of its Subsidiaries guarantees any indebtedness of any other Person (other than it or any of its Subsidiaries) (except for trade payables arising in the ordinary course of business), (iv) involving any material partnership, joint venture or other similar arrangement with any other Person (other than it or any of its Subsidiaries), relating to the formation, creation, operation, management or control of any such partnership or joint venture, (v) that involves or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $5 million in any twelve-month period, other than: (A) Contracts that can be terminated by it or any of its Subsidiaries on less than 90 days’ notice without payment by it or any of its Subsidiaries of any penalty, or (B) Assumed Reinsurance Contracts, (vi) that have been entered into since January 1, 2012 or otherwise provide for material ongoing obligations of it or any of its Subsidiaries and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business (excluding, for the avoidance of doubt, acquisitions or dispositions of Investment Assets, and immaterial tangible assets in the ordinary course of business), (vii) that outsources any material function or part of its business or that of any Subsidiary or Subsidiaries (viii) that prohibits or restricts the 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 or prohibits or restricts the issuance of any guarantee by it or any of its Subsidiaries, (ix) that restricts its ability to incur indebtedness or guarantee the indebtedness of others, or (x) in its case (and not in the case of any of its Subsidiaries) that are guarantees, including of obligations, suretyship contracts, performance bonds or other form of guaranty agreement or capital maintenance agreements or any keep ▇▇▇▇▇, or (xi) Contracts or agreements that contain a put, call or similar right pursuant to which it 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 $50 million (each such Contract described in clauses (i)-(xi), other than any Reinsurance Contract, Real Property Lease or Benefit Plan, a “Material Contract”).
(i) through Each Material Contract is a legal, valid and binding agreement of it and its Subsidiaries to the extent such Person is a party thereto and, to its Knowledge, each other party thereto is in compliance in all material respects with its terms and is in full force and effect, except where the failure to be valid, binding or in full force and effect would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (xiiiii) below it and each of its Subsidiaries and, to whichits 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 its Disclosure Letter contains a true and correct list, as of the date of this Agreement, the Company or its Subsidiaries is a party or of each Material Contract entered into by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent it or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).
Appears in 2 contracts
Sources: Agreement and Plan of Amalgamation (Partnerre LTD), Agreement and Plan of Amalgamation (Axis Capital Holdings LTD)
Material Contracts. (a) Section 3.13(aSchedule 5.9(a) sets forth an accurate and complete list of all of the Company Disclosure Schedule contains a listing following Contracts to which Seller or any of all Contracts described in clauses (i) through (xiii) below to which, as of the date of this Agreement, the Company or its Subsidiaries Affiliates is a party or by is otherwise bound with respect to the Business or the Purchased Assets which they are boundin effect on the Effective Date, other than a Company Benefit Plan, and excluding Easements (each such Contract that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are is required to be set forth listed on Section 3.13(aSchedule 5.9(a), except for those referenced in clause (xii) of the Company Disclosure Schedulebelow, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company all Transferred Contracts that individually involved expenditures or its Subsidiaries issued purchase orders (whether by or to Seller or an Affiliate thereof) in excess of $1,500,000 in the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiariescalendar year ended December 31, 2024;
(ii) all Transferred Contracts between Seller and any Contract under which of its Affiliates that will not be terminated prior to Closing that individually is expected to involve future expenditures (whether by or to Seller) in excess of $1,500,000 in any year;
(iii) all collective bargaining agreements or other agreements with any labor union, employees’ association, or other employee representative of a group of Business Employees (“Collective Bargaining Agreements”);
(iv) all Transferred Contracts providing for the Company extension of credit by Seller in excess of $1,500,000 in any year, other than the extension of credit to vendors in the Ordinary Course of Business;
(v) all Transferred Contracts for gas transportation or its Subsidiaries is lessee gas storage that involved payments by the Business in excess of $1,500,000 in the year ended December 31, 2024;
(vi) all Transferred Contracts restricting the right of Seller to compete with any Person or holds in any line of business or operatesgeographic area or containing exclusivity, fixed pricing, “most favored nations” or similar obligations, in each case, that would be binding on, or otherwise impair Buyer’s and its Affiliates’ operation of, the Business after the Closing;
(vii) all Transferred Contracts concerning the use, licensing, development or maintenance of Intellectual Property or IT Assets, other than nondisclosure or confidentiality agreements entered into in the Ordinary Course of Business or agreements with Business Employees or independent contractors entered into in the Ordinary Course of Business on the Seller’s or an Affiliate’s form agreement;
(viii) all Contracts with any tangible property Governmental Entity relating to the Business, the Purchased Assets or the Assumed Obligations (other than real property), owned by customer Contracts in the Ordinary Course of Business) that will involve payment after the Effective Time of any material amount or impose any other Person, except for material obligation (including any lease or agreement under which conduct-related obligation) after the aggregate annual rental payments do not exceed $500,000Effective Time;
(iiiix) all Leases that are material to the operation of the Business as currently conducted with an annual base rent in excess of $5,000,000;
(x) all partnership, joint venture, and joint ownership agreements, and all similar material agreements (however named) involving a sharing of assets, profits, losses, costs, or Liabilities relating to the Business, the Purchased Assets or the Assumed Obligations;
(xi) each Contract that requires any capital commitment or capital expenditure (including any series of related capital expenditures) in respect of the Business of greater than $5,000,000; and
(xii) all Shared Contracts that individually involved expenditures or issued purchase orders (whether by or to Seller or an Affiliate thereof) with respect to the Business in excess of $1,500,000 in the calendar year ended December 31, 2024.
(b) Seller has made available to Buyer copies of all Material Contracts together with all material amendments, waivers, and other changes thereto, which are correct and complete in all material respects, except as set forth on Schedule 5.9(b). Except as set forth on Schedule 5.9(b): (i) each Material Contract under which is a valid and binding obligation of Seller, enforceable against it in accordance with its terms, including by estoppel or waiver by the Company parties thereto, and, to Seller’s Knowledge, is a valid and binding obligation of each other party thereto, enforceable against it in accordance with its terms, including by estoppel or its Subsidiaries is lessor of or permits any third party to hold or operatewaiver by the parties thereto, in each casecase except as the same may be limited by the Remedy Exceptions; and (ii) neither Seller, nor, to Seller’s Knowledge, any tangible property other party thereto, is (other than real property)or, owned upon the passage of time or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contractgiving of notice, or similar both, would be) in default under or breach of any Material Contract, in each case, which requiresexcept for breaches, violations, or defaults as would reasonably not be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business ormaterial, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Business.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Spire Missouri Inc), Asset Purchase Agreement (Duke Energy Florida, LLC)
Material Contracts. (a) Section 3.13(aExcept for contracts 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”) of (collectively, the Company “SEC Reports”), including Monroe’s Annual Report on Form 10-K for the year ended December 31, 2009, and Quarterly Report on Form 10-Q for the quarter ended June 30, 2010, or as set forth in the Monroe Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to whichSchedule, as of the date of this Agreement, the Company neither Monroe nor any of its Subsidiaries, nor any of their respective assets, businesses, or its Subsidiaries operations, is a party to, or by which they are boundis bound or affected by, other than a Company Benefit Planor receives benefits under, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract contract relating to Indebtedness for borrowed the borrowing of money by Monroe or any of the Company or its Subsidiaries or to the placing guarantee by Monroe or any of a Lien its Subsidiaries of any such obligation (other than a Permitted Lien) on any material assets contracts pertaining to fully-secured repurchase agreements, and trade payables, and contracts relating to borrowings or properties guarantees made in the ordinary course of the Company or its Subsidiaries;
business), (ii) any Contract under which contract containing covenants that limit the Company ability of Monroe or its Subsidiaries is lessee any of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or with any Person Person, or in to hire or engage the services of any area Person, or that would so limit involve any restriction of the geographic area in which, or purport to limitmethod by which, in any material respect, the operations of Parent Monroe or any of its Affiliates after the Closing, Subsidiaries may carry on its business (Bother than as may be required by Law or any Governmental Authority) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third partiesas each are hereinafter defined), or to solicit any potential employee or customer, in each case, in any material respect or contract that would so limit or purports to limit, in any material respect, Parent requires it or any of its Affiliates after Subsidiaries to deal exclusively or on a “sole source” basis with another party to such contract with respect to the Closing;
subject matter of such contract, (viiii) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiarycontract for, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution with respect to, or that contemplates, a possible merger, consolidation, reorganization, recapitalization or other investment inbusiness combination, any Person;
(ix) any Contract required or asset sale or sale of equity securities not in the ordinary course of business consistent with past practice, with respect to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent Monroe or any of its Affiliates after the ClosingSubsidiaries, (iv) is any other contract or may amendment thereto that would be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants be filed as an exhibit to any Person any right SEC Report (as described in Items 601(b)(4) and 601(b)(10) of first refusal, right of first negotiation, option Regulation S-K under the ▇▇▇▇ ▇▇▇) that has not been filed as an exhibit to purchase, option or incorporated by reference in Monroe’s SEC Reports filed prior to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xivv) any Contract with the Company lease of real or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company personal property providing for annual lease payments by or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company Monroe or its Subsidiaries in excess of $300,000 100,000 per annum other than financing leases entered into in the ordinary course of business in which Monroe or any of its Subsidiaries is the lessor, or (Bvi) aggregate payments to any contract that involves expenditures or from the Company receipts of Monroe or any of its Subsidiaries in excess of $1,500,000 over 100,000 per year not entered into in the life ordinary course of business consistent with past practice. The contracts of the agreement andtype described in the preceding sentence, in each case, that is whether or not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof of this Agreement, shall be deemed “Material Contracts” hereunder. With respect to each of Monroe’s Material Contracts (i) that is reflected as an exhibit to any 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 (iii) that is disclosed in the Monroe 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 in full force and effect; (B) neither Monroe 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 Monroe nor any of its Subsidiaries has repudiated or waived any material provision of any such Material Contract; and (D) no other than purchase ordersparty to any such Material Contract is, invoicesto Monroe’s knowledge, in material default in any material respect. True copies of all Material Contracts, including all amendments and similar confirmatory or administrative documents supplements thereto, that are ancillary not filed as exhibits to SEC Reports are attached to the main contractual relationship between Monroe Disclosure Schedule.
(b) Neither Monroe nor any of its Subsidiaries have entered into any interest rate swaps, caps, floors, option agreements, futures and forward contracts, or other similar risk management arrangements, whether entered into for Monroe’s own account or for the parties to a particular Contract account of one or group more of Contracts and that, in each case, do not contain any material executory its Subsidiaries or continuing terms, conditions, obligations or rights)their respective customers.
Appears in 2 contracts
Sources: Merger Agreement (Old National Bancorp /In/), Merger Agreement (Monroe Bancorp)
Material Contracts. (a) Section 3.13(aSchedule 4.18(a) of the Company Disclosure Schedule contains Letter, together with the lists of exhibits contained in the Company SEC Documents, sets forth a listing of all Contracts described in clauses true and complete list (i) through (xiii) below to whichbut excluding any Company Plan), as of the date of entry into this Agreement, of the following contracts to which the Company or any of its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):party:
(i) any Contract relating to Indebtedness for borrowed money each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its SubsidiariesExchange Act);
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) Document of the Company or any of its Subsidiaries to make any payment that would, on or incur any Liability as a result after the Closing Date, prohibit or restrict the ability of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or Parent or any of their respective 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 in excess (including the Surviving Corporation and its Subsidiaries), make loans or advances to Parent or any of $300,000 or its Subsidiaries (Bincluding the Surviving Corporation and its Subsidiaries);
(iii) aggregate payments to or from each contract that contains covenants that limit the ability of the Company or any of its Subsidiaries Affiliates to compete in excess of $1,500,000 over the life of the agreement andany business or 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 is could reasonably be expected to be material to the business of the Company and its Subsidiaries, taken as a whole;
(iv) each contract that (A) provides for material exclusive rights for the benefit of any third party, (B) grants “most favored nation” status to any third party or (C) requires the Company or any of its Affiliates to provide any minimum level of service, in each case which (1) are, or in a manner which is, material to the Company and its Subsidiaries taken as a whole and (2) may not terminable be terminated (including such restrictive provisions) by the applicable the Company or its Subsidiaries without penalty upon on less than thirty (30) 90 days’ prior written notice.notice without payment by the Company or any of its Subsidiaries of any material penalty;
(iv) Each Material Contract each contract with a remaining term of more than one year from the date hereof that could require the Surviving Corporation or any of its Affiliates to purchase all (or a specified portion of) its total requirements of any product or service from a third party or that contains “take or pay” provisions and which (A) is valid expected to involve the payment of an amount in excess of $25 million in the aggregate during the fiscal year ending December 31, 2024 or any future fiscal year and binding on (B) may not be terminated (including such restrictive provisions) by the Company or its Subsidiaries on less than 90 days’ notice without payment by the Company 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 the Company 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 the Company and its Subsidiaries over the remaining term of such agreement, order or commitment would reasonably be expected to exceed $100 million;
(viii) that is a contractual royalty, production payment, net profits, earn-out or similar contract on a material property of such Party that has a value or expected value in excess of $5 million from the date hereof, excluding, however, any of the foregoing payable pursuant to any instrument with respect to Company Real Property;
(ix) each contract relating to the disposition or acquisition by the Company or any of its Subsidiaries 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 coal, diesel fuel and ANFO (ammonium nitrate and fuel oil) and contracts entered into as a hedging activity in the Ordinary Course consistent with the Company’s past practice and internal policy guidelines;
(xi) any joint venture, partnership or similar organizational contract involving a sharing of profits or losses by the Company or any of its Subsidiaries (or any 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 the Ordinary Course which would not reasonably be expected to be material to the Company and its Subsidiaries, taken as applicablea whole; and
(xii) any contract to which the Company 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 the Company or any of its Subsidiaries (other than any purchase option for additional coal volumes or any contract entered into in the Ordinary Course which would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole).
(b) Collectively, the contracts set forth in Section 4.18(a), whether or not set forth in the Company Disclosure Letter, are referred to in this Agreement as the “Company Contracts.” A complete and correct copy of each of the Company Contracts has been made available to Parent (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 Company Contracts). 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 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 of the Company’s Knowledge, the counterparties each other party thereto, and is in full force and effect effect, subject, as to enforceability, to Creditors’ Rights. Except as has not had and enforceable would not reasonably be expected to have, individually or in accordance with its terms against the aggregate, a Company Material Adverse Effect, neither the Company or nor any of its Subsidiaries andis in breach or default under any Company Contract nor, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement knowledge of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not is any other party to any such Company Contract in material breach of, or default underthereunder, any Material Contract and (iii) no event has occurred that (with or without due notice or the lapse of time or both) the giving of notice or both would result in constitute a material breach of, or default under, any Material Contract thereunder by the Company or its Subsidiaries Subsidiaries, or, to the knowledge of the Company’s Knowledge, the counterparties any other party thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as As of the date hereof (other than purchase ordersentry into this Agreement, invoicesthere are no disputes pending or, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between knowledge of the parties Company, Threatened with respect to a particular any Company Contract and neither the Company nor any of its Subsidiaries has received any notice of the intention of any other party to any Company Contract to terminate for default, convenience or group otherwise any Company Contract, nor to the knowledge of Contracts and thatthe Company, is any such party threatening to do so, in each casecase except as has not had or would not reasonably be expected to have, do not contain any material executory individually or continuing termsin the aggregate, conditions, obligations or rights)a Company Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Arch Resources, Inc.), Merger Agreement (CONSOL Energy Inc.)
Material Contracts. (a) Section 3.13(a3.18(a) of the Company Disclosure Schedule contains a listing set forth an accurate and complete list of all of the following types of Contracts described in clauses (i) through (xiii) below to which, which any Group Company is a party as of the date of this Agreement, the Company or its Subsidiaries is a party or by excluding in each case, Contracts under which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the such Group Company has with no material outstanding rights or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure ScheduleContracts, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating that would be required to Indebtedness for borrowed money be filed by the Company pursuant to Item 4 of the Company or its Subsidiaries or Instructions to Exhibits of Form 20-F under the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its SubsidiariesExchange Act;
(ii) any Contract under which relating to (A) the Company formation, creation, operation, management or its Subsidiaries is lessee control of a partnership, joint venture, limited liability company or holds similar arrangement with any Group Companies making investment in the amount of more than US$5,000,000, (B) strategic cooperation or operatespartnership arrangements, in each caseor (C) other similar agreements outside the ordinary course of business involving a sharing of profits, any tangible property (other than real property)losses, owned costs or liabilities by any other Person, except for any lease or agreement under which Group Company in an amount material to the aggregate annual rental payments do not exceed $500,000Company;
(iii) any Contract under which involving a loan (other than accounts receivable in the ordinary course of business) or advance to (other than travel and entertainment allowances to the employees of the Company or and any of its Subsidiaries is lessor extended in the ordinary course of business), or permits investment in, any third party person other than a Group Company or any Contract relating to hold the making of any such loan, advance or operateinvestment, in each case, any tangible property (other than real property), owned or controlled by case only if material to the Company or its Subsidiaries, except for any lease or agreement under which financial status of the aggregate annual rental payments do not exceed $200,000Company;
(iv) any Contract involving Indebtedness of the Company or any of its Subsidiaries except for any Indebtedness (A) joint ventureas set forth in the consolidated financial statements of the Company and its Subsidiaries (including the notes thereto) included in the Company’s annual report on Form 20-F filed with the SEC on April 23, profit-sharing2021, partnership(B) incurred in the ordinary course of business consistent with past practice as of December 31, collaboration2020, co-promotion, commercialization (C) incurred pursuant to this Agreement or research or development Contractin connection with the Transactions, or similar Contract(D) to the knowledge of the Company, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries not in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)RMB20,000,000;
(v) any Contract that (Aincluding so called take-or-pay or keep-well agreements) limits under which any person (other than the Company or purports to limit, in any material respect, the freedom of its Subsidiaries) has directly or indirectly guaranteed Indebtedness of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability Subsidiaries in excess of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the ClosingRMB10,000,000;
(vi) any Contract requiring granting or evidencing a Lien on any future capital commitment properties or capital expenditure (or series assets of capital expenditures) by the Company or any of its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreementSubsidiaries, other than a Permitted Encumbrances;
(vii) any financial advisory Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000RMB10,000,000;
(viii) any Contract under for the acquisition, disposition, sale, transfer or lease (including leases in connection with financing transactions) of properties or assets of the Company or any of its Subsidiaries that have a fair market value or purchase price of more than RMB100,000,000 (by merger, purchase or sale of assets or stock or otherwise) or pursuant to which the Company or any of its Subsidiaries hashave continuing, directly or indirectlyindemnification, made or agreed to make any loanguarantee, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, “earn-out” or other investment in, any Personcontingent payment obligations;
(ix) any Contract required Contracts relating to be disclosed on Section 3.19 or in connection with any outstanding resolution or settlement of the Company Disclosure Scheduleany actual or threatened litigation, arbitration, claim or other dispute in excess of RMB10,000,000;
(x) any Contract with for the employment of any Person (A) pursuant to which officer, individual employee or other person by the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is Subsidiaries on a full-time or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license consulting basis or any other similar rights with respect to any material Company Product or any material Intellectual Propertyseverance agreements calling for payments in excess of RMB10,000,000 annually;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement competition Contract or other Contract with the Company that purports to limit, curtail or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result restrict in any obligation (absolute or contingent) material respect the ability of the Company or any of its Subsidiaries to make compete in any payment geographic area, industry or incur line of business that is material to the business of the Group Companies taken as a whole;
(xii) any Liability Contract that contains a put, call or similar right outside the ordinary course of business of the Company or pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any person or assets that have a fair market value or purchase price of more than US$5,000,000;
(xiii) any Contract (other than Contracts granting Company Options) pursuant to which any other party has the right to terminate such Contract as a result of this Agreement or the consummation of the transactions contemplated Transactions, including the Merger, where (A) such Contract requires any payment in excess of RMB25,000,000 to be made by this Agreementthe Company and/or any of its Subsidiaries or (B) the value of the outstanding receivables due to the Company and/or its Subsidiaries under such Contract is in excess of RMB10,000,000;
(xiv) any Contract that contains restrictions with respect to (A) payment of dividends or any distribution with respect to equity interests of the Company or any of its Subsidiaries, termination (B) pledging of employment share capital of the Company or both; andany of its Subsidiaries or (C) issuance of guarantee by the Company or any of its Subsidiaries;
(xv) any Contract providing for (A) a license, covenant not to s▇▇ or other right granted by any person under any Intellectual Property to the Company or any of its Subsidiaries, (B) a license, covenant not to s▇▇ or other right granted by the Company or any of its Subsidiaries to any person under any Intellectual Property, other than agreements for off-the-shelf Software, (C) an indemnity of any person by the Company or any of its Subsidiaries against any charge of infringement, misappropriation, unauthorized use or violation of any Intellectual Property right, or (D) any royalty, fee or other amount payable by the Company or any of its Subsidiaries to any person by reason of the ownership, use, sale or disposition of Intellectual Property in each case only if material to the Company;
(xvi) any material Contract outside the ordinary course of business of the Company or not on arm’s length terms between the Company or any of its Subsidiaries, on one hand, and any Affiliate or other entity in which any Group Company has a direct or indirect equity interest, or director, or executive officer, or any person beneficially owning five percent (5%) or more of the outstanding Equity Securities of any Group Company or any of their respective Affiliates (other than the Group Companies), or immediate family members or any of the respective Affiliates of such family members, on the other hand;
(xvii) any other Contract with a currently effective “standstill” restriction on any person with respect to the performance Company’s securities; or
(xviii) any Contract which have not been covered by subsections (i) through (xvii) that is outside the ordinary course of which requires either (A) annual payments to or from business and involves consideration of more than RMB10,000,000, in the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 aggregate, over the life remaining term of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticesuch Contract.
(b) Except as would not have a Company Material Adverse Effect, (i) Each each Material Contract is a legal, valid and binding on the Company or its Subsidiariesobligation of a Group Company, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable against the such Group Company in accordance with its terms terms, subject to the Bankruptcy and Equity Exception; (ii) to the knowledge of the Company, each Material Contract is a legal, valid and binding obligation of the counterparty thereto, in full force and effect and enforceable against such counterparty in accordance with its terms, subject to the Bankruptcy and Equity Exception, (iii) no Group Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement knowledge of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not no counterparty, is or is alleged to be in material breach or violation of, or default under, any Material Contract and Contract; (iiiiv) to the knowledge of the Company, no person intends to terminate or cancel any Material Contract; (v) no event Group Company has occurred that (with or without due notice or lapse received any written claim of time or both) would result in a material breach of, or default under, under any such Material Contract by the Company or its Subsidiaries orand, to the Company’s Knowledgeknowledge, no fact or event exists that would give rise to any claim of default under any Material Contract; and (vi) neither the counterparties theretoexecution of this Agreement nor the consummation of any Transaction shall constitute a material default under, give rise to cancellation rights under, or otherwise adversely affect any of the material rights of any Group Company under any Material Contract. The Company has furnished or made available to Parent Merger Sub true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase ordersContracts, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain including any material executory or continuing terms, conditions, obligations or rights)amendments thereto.
Appears in 2 contracts
Sources: Merger Agreement (Yan Rick), Merger Agreement (51job, Inc.)
Material Contracts. (a) Except as set forth in Section 3.13(a3.9(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to whichLetter, as of the date hereof, neither of this Agreement, the Company or nor any of its Subsidiaries is a party to or bound by which they are bound, any: (i) contract (other than this Agreement or a Company Benefit Plan) that would be required to be filed by the Company as a material contract pursuant to Item 601(b)(10) of Regulation S-K of the SEC; (ii) indenture, and credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other evidence of Indebtedness or agreement providing for Indebtedness in excess of $10,000,000; (iii) written contract (other than this Agreement) for the sale of any of its assets after the date hereof (other than sales of product in the ordinary course of business); (iv) collective bargaining agreement; (v) written contract that are not expired contains a put, call, right of first refusal or have not been terminated and not including any Contracts similar right pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are any of its Subsidiaries would be required to be set forth on Section 3.13(apurchase or sell, as applicable, any equity interests of any Person; (vi) settlement agreement or similar agreement with a Governmental Entity or Order to which the Company or any of its Subsidiaries is a party involving future performance by the Company or any of its Subsidiaries which is material; (vii) contract providing for indemnification (including any obligations to advance funds for expenses) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent current or its agents former directors or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money officers of the Company or any of its Subsidiaries Subsidiaries; or to the placing of a Lien (viii) other contract (other than a Permitted Lien) on this Agreement, purchase orders for the purchase of inventory or agreements between the Company and any material assets of its wholly owned Subsidiaries or properties between any of the Company or its Company’s wholly owned Subsidiaries;
(ii) any Contract under which the Company or and its Subsidiaries are obligated to make or receive payments in the future in excess of $10,000,000 per annum or $20,000,000 during the life of the contract. Each such contract described in clauses (i)-(viii) is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;referred to herein as a “Material Contract.”
(iiib) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do Except as would not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business orhave, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution toa Material Adverse Effect, or other investment in, any Person;
(ixi) any Contract required to be disclosed on Section 3.19 of neither the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or nor any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; is (and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Knowledge of the Company’s Knowledge, no other party is) in default under any Material Contract, (ii) each of the counterparties thereto, and Material Contracts is in full force and effect effect, and is the valid, binding and enforceable in accordance with its terms against obligation of the Company or and its Subsidiaries andSubsidiaries, and to the Knowledge of the Company’s Knowledge, of the counterparties thereto other parties thereto, except that (x) such enforcement may be subject to applicable bankruptcy, reorganization, insolvency, reorganization, moratorium or other Laws similar Laws, now or hereafter in effect, affecting generally the enforcement of creditors’ rights generally and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to general principles equitable defenses and to the discretion of equity)the court before which any proceeding therefor may be brought, (iiiii) the Company or and its Subsidiaries have performed all respective material obligations required to be performed by them to date under the Material Contracts, are not and no circumstance exists, which (with or without the lapse of time or the giving of notice, or both) would cause them to be, in breach thereunder and (iv) neither the Company nor any of its Subsidiaries has received any notice of termination with respect to, and, to the Knowledge of the Company’s Knowledge, the counterparties thereto are not in material breach of, or default underno party has threatened to terminate, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Contract.
Appears in 2 contracts
Sources: Merger Agreement (Berkshire Hathaway Inc), Merger Agreement (LUBRIZOL Corp)
Material Contracts. (a) Section 3.13(a) The Company Disclosure Schedules set forth a complete and correct list of all agreements of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant following types to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment is a party or incur any Liability may be bound (collectively, the "Material Contracts"): (i) employment, severance, termination, consulting and retirement agreements that are not terminable "at will"; (ii) agreements which involve future payments by the Company of more than $50,000 or which are not cancelable without penalty by the Company in less than 60 days, (iii) royalty and licensing agreements of the Company acting as a result licensor; (iv) agreements with any labor organization or other collective bargaining unit; (v) agreements for the purchase, sale or lease of any real estate; (vi) agreements for the sale of assets material to the operation of the consummation Company's business other than in the ordinary course of business or the grant of any preferential rights to purchase any such material assets; (vii) agreements which contain provisions requiring the Company or any Subsidiary to indemnify any person not entered into in the ordinary course of business consistent with past practice; (viii) joint venture agreements or other agreements involving the sharing of profits; (ix) agreements (including, without limitation, agreements not to compete and exclusivity agreements) that reasonably could be interpreted to impose any restriction on any business operations of the transactions contemplated by this AgreementCompany or the Company Subsidiaries, termination of employment except for agreements containing restrictions that would not have a the Material Adverse Effect on the Company; or both; and
(xviix) any other Contract agreements that are material to the performance conduct of which requires either (A) annual payments to or from the business of the Company or and its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeSubsidiaries.
(ib) Each All the Material Contract is Contracts are valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable on the date hereof (except to the extent they have previously expired in accordance with its terms against their terms) and constitute legal, valid and binding obligations of, and are legally enforceable against, the Company or any of its Subsidiaries andwhich is a party thereto, and to the knowledge of the Company, the other party or respective parties thereto. To the knowledge of the Company, there have been no threatened cancellations thereof and no outstanding disputes thereunder, except such that would not have a the Material Adverse Effect on the Company. Each of the Company and its Subsidiaries has in all material respects performed all the obligations under the Material Contracts required to be performed by the Company and its Subsidiaries to date. The Company is not in default, and to the Company’s Knowledge's knowledge, no party is in default, in any material respect under any of the counterparties thereto Material Contracts, and there has not occurred any event which (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (whether with or without due notice or notice, lapse of time or boththe happening or occurrence of any other event) would result constitute such a default, except for defaults which would not in the aggregate reasonably be expected to have a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties theretoAdverse Effect. The Company has made available to Parent true True and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory have been delivered to Parent or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)made available for inspection.
Appears in 2 contracts
Sources: Merger Agreement (Ns Acquisition Corp), Merger Agreement (National Standard Co)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the The Company has with no material outstanding furnished or executory obligations or Liabilities (such Contracts as are required agreed to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct make available to News Corp. accurate and complete copies of the Material Contracts listed on Section 3.13(a(as defined below) of the Company Disclosure and the Company Subsidiaries, all of which are listed on Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) 3.9. There is not under any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on Material Contracts any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operatesexisting breach, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity default or event contemplated of default by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance nor event that with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) both would result in constitute a material breach ofbreach, default or event of default under, any Material Contract by the Company or its any of the Company Subsidiaries orother than breaches, defaults or events of default which would not have a Business Unit Material Adverse Effect; nor does the Company have Knowledge of, and the Company has not received notice of, or made a claim with respect to, any breach or default by any other party thereto. As used herein, the term "Material Contracts" shall mean (i) all contracts and agreements filed, or required to be filed, as exhibits to the Company’s Knowledge's Annual Report on Form 10-K for the year ended December 31, 1996; (ii) all contracts and agreements entered into since December 31, 1996 which would be required to be filed as an exhibit to the counterparties thereto. The Company's Quarterly Report on Form 10-Q for the quarter ending March 31, 1997 or to any Current Report on Form 8-K; (iii) any debt instrument, including, without limitation, any loan agreement, promissory note, security agreement or other evidence of indebtedness, where the Company has made available or any Company Subsidiary is a lender or borrower; (iv) any contract or commitment restricting the Company or any Company Subsidiary from engagement in any line of business; (v) any in-store agreement with a retailer; (vi) any agreement with a manufacturer with a term in excess of twelve months; (vii) any material joint venture agreement; (viii) any agreement providing for contingent consideration; and (ix) any agreement, option, commitment or rights with, to Parent true and complete copies of all Material Contracts or in effect as of any third party to acquire or to sell a material business division or unit after the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)hereof.
Appears in 2 contracts
Sources: Merger Agreement (HMC Acquisition Corp /De/), Merger Agreement (Heritage Media Corp)
Material Contracts. (a) Section 3.13(aSchedule 3.14(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses lists each following Contract (ix) through (xiii) below to which, as by which any of the date of this AgreementPurchased Assets is bound or affected or (y) to which Seller, the Company or its Subsidiaries applicable Affiliate, is a party and is used with respect to the Business or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):Purchased Assets:
(i) any Contract relating to Indebtedness for borrowed money involving aggregate consideration in excess of $1,000,000 or requiring performance by any party more than one (1) year from the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiariesdate hereof;
(ii) any Contract under which that relates to the Company sale, license or its Subsidiaries is lessee lease of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which of the aggregate annual rental payments do not exceed $500,000Purchased Assets;
(iii) any Contract under which the Company with (A) any Business Customer or its Subsidiaries is lessor of or permits (B) any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000Business Supplier;
(iv) any Contract providing for any non-competition, non-solicitation, exclusive dealing, grants of exclusive rights, or prohibiting Seller or Purchaser (Aafter the Closing) from freely engaging in business or otherwise including provisions on joint ventureprice-fixing, profit-“most favored nation”, pricing limitations, required discounts, rights of first refusal, right of first offer, market or customer sharing, partnership, collaboration, co-promotion, commercialization exclusivity or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)market classification;
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the ClosingLabor Agreement;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in with an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreementIdentified Employee;
(vii) any Contract requiring not executed in the Company ordinary course of business, not consistent with fair market terms, conditions and prices or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company with applicable Laws or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000otherwise not made on arm’s length terms and conditions;
(viii) any Contract under in which the Company or its Subsidiaries has, directly or indirectly, made or Seller has agreed to make any loanpurchase, advance“take or pay,” minimum commitments, volume requirements or assignment similar obligations or supply a minimum quantity of payment to any Person outside of the Ordinary Course of Business or, individually goods or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Personservices;
(ix) any Contract required with an uncapped guaranty, liability or indemnification for any product related to be disclosed on Section 3.19 of the Company Disclosure ScheduleBusiness;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual PropertyGovernment Contract;
(xi) any Contract for that could prohibit or delay the disposition of any portion consummation of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligationtransactions contemplated hereby;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes relating to any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing)Assumed Liability; and
(xiii) each collective bargaining agreement any Contract between or other Contract with the Company among Seller or any of its Subsidiaries, Affiliates on the one hand, hand and any labor union, labor organization or works council representing employees Affiliate of the Company or its Subsidiaries, Seller on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(ib) Seller has performed in all material respects all obligations required to be performed by it and is not in default under or in breach of nor in receipt of any claim of default or breach under any Material Contract, and no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by Seller or, to the Knowledge of Seller, any other party under any such Material Contract. To the Knowledge of Seller, each other party to each such Contract has performed in all material respects all obligations required to be performed by it under such Contract. Each Material Contract (i) is valid and legal, valid, binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries Seller and, to the Company’s KnowledgeKnowledge of Seller, the counterparties thereto (subject against each other party to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights such Contract and subject to general principles of equity), (ii) will continue to be legal, valid, binding and enforceable on identical terms as of immediately after the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event Closing. Purchaser has occurred that (been supplied with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true correct and complete copies copy of each Material Contract, together with all Material Contracts in effect as of the date hereof (amendments, waivers or other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)changes thereto.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Maxeon Solar Technologies, Ltd.), Asset Purchase Agreement (Complete Solaria, Inc.)
Material Contracts. (a) Except for this Agreement, for Contracts filed as exhibits to the Company Reports or as disclosed in Section 3.13(a3.15(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to whichSchedule, as of the date of this Agreement, Agreement (i) neither the Company or nor any of its Subsidiaries is a party or by which they are bound, other than a Company Benefit Planto, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(aii) none of the Company Disclosure ScheduleCompany, the “Material Contracts”). Trueany of its Subsidiaries, correct and complete copies or any of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent their respective properties, assets or its agents or representatives, together with all amendments thereto):rights is bound by:
(i) any Contract relating that is or would be required to Indebtedness for borrowed money of be filed by the Company as a “material contract” with the SEC pursuant to Item 601(b)(10) of Regulation S-K or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of disclosed by the Company or its Subsidiarieson Form 8-K;
(ii) any Contract under which limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture (excluding any Teaming Agreement) that is material to the business of the Company or and its Subsidiaries is lessee of or holds or operatesSubsidiaries, in each casetaken as a whole, any tangible property (other than real property)any such limited liability company, owned by any other Person, except for any lease partnership or agreement under which joint venture that is a Subsidiary of the aggregate annual rental payments do not exceed $500,000Company;
(iii) any Contract under which (other than among consolidated Subsidiaries of the Company or its Subsidiaries is lessor of capital or permits operating leases) relating to (x) indebtedness for borrowed money or (y) any third party to hold interest rate, currency or operate, in each case, any tangible property (other than real property), owned commodity derivatives or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000hedging transactions;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(vTeaming Agreement) any Contract that (A) limits or purports to limit, in any material respect, limit the freedom right of the Company or any of its Subsidiaries to engage or compete in any line of business or to compete with any Person or operate in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiarylocation, in each case in excess of $200,000;
(viii) any Contract under which respect material to the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or and its Subsidiaries or for Subsidiaries, taken as a whole;
(v) any Contract entered into since the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect Applicable Date relating to an acquisition, divestiture, merger or similar transaction that contains representations, covenants, indemnities or other obligations (including payment, indemnification, purchase price adjustment, “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingentobligations) of the Company or any of its Subsidiaries that are still in effect and would reasonably be expected to make any payment or incur any Liability as a result of the consummation of the transactions contemplated in payments by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or any of its Subsidiaries in excess of $300,000 or 250,000;
(Bvi) aggregate payments to or from any Contract that obligates the Company to make any capital commitment or its Subsidiaries expenditure (including pursuant to any joint venture) in excess of $1,500,000 over the life 1,000,000;
(vii) any individual Contract with an employee of the agreement and, in each case, that is not terminable by the applicable 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, such as expatriate allowance, 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 penalty upon less express liability post-termination other than thirty (30) days’ prior written notice.severance paid in the ordinary course of business; and
(iviii) Each Material any Contract is valid and binding on that prohibits the pledging of capital stock of the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against any Subsidiary of the Company or its Subsidiaries and, to prohibits the issuance of guarantees by any Subsidiary of the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).
Appears in 2 contracts
Sources: Merger Agreement (Providence Equity Partners VI L P), Merger Agreement (Sra International Inc)
Material Contracts. (a) Except as disclosed in Section 3.13(a) 3.10 of the Company Seller Disclosure Schedule contains Letter and for Contracts related to the Plans, none of the Acquired Entities is a listing of all Contracts described party to or bound by any Contract (including any Government Contract) in clauses (i) through (xiii) below to which, effect as of the date of this Agreement, Agreement and of the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities following nature (all such Contracts as are required to be set forth on disclosed by this Section 3.13(a) of the Company Disclosure Schedule3.10, collectively, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating pursuant to Indebtedness for borrowed money of which, the Company or any of its Subsidiaries or to incurred Indebtedness exceeding $1,000,000 for which any Acquired Entity will be liable following the placing of a Lien (other than a Permitted Lien) on any material assets or properties of Closing, including the Company or its SubsidiariesCredit Agreement;
(ii) that (A) involve the performance by an Acquired Entity of services of an amount or value (as measured by the revenue derived therefrom during the fiscal year ended December 31, 2017) in excess of $2,000,000 annually or (B) involve payments by the Acquired Entities in excess of $2,000,000 annually, unless, in the case of clauses (A) and (B), any such Contract is terminable by the Acquired Entities on not more than 60 days’ notice without material penalty;
(iii) which involve, as parties thereto, any Acquired Entity on the one hand, and any of the directors, officers, employees or equityholders of any Acquired Entity on the other hand, exceeding $250,000;
(iv) which prohibits any Acquired Entity from competing in the business of the Acquired Entities as conducted as of the date hereof or in any geographic area or that restricts any Acquired Entity’s ability to solicit or hire any person as an employee;
(v) that relates to the future disposition or acquisition of material assets or properties by any Acquired Entity except in the Ordinary Course of Business, or any merger or business combination with respect to any other Person;
(vi) that requires or provides for any capital expenditure in excess of $1,000,000;
(vii) for the provision of services to any Acquired Entity by any independent contractor for annual consulting fees in excess of $250,000 (other than any Contract that may be terminated by any party thereto upon 30 days or less advance notice);
(viii) under which any Acquired Entity leases, or is provided with the Company right to hold or its Subsidiaries is lessee of or holds or operates, in each caseoperate, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000250,000;
(iiiix) any Contract under which the Company or its Subsidiaries is lessor of any Acquired Entity leases, or permits any third party to hold or operate, in each case, any tangible property (other than real propertyReal Property), owned or controlled by the Company or its SubsidiariesCompany, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule250,000;
(x) which establish a joint venture, strategic alliance or material partnership involving the sharing of profits (other than any Contract with any Person (A) pursuant to which such Contracts solely among the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual PropertyAcquired Entities);
(xi) which involve the license or grant of rights licensed to or licensed from any Contract for Acquired Entity to Intellectual Property or Computer Software material to the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract Business but excluding (A) requiring monetary payments by any inbound agreements that have individual acquisition costs of $250,000 or less relating to “shrink wrap”, “click wrap” and similar generally available end-user licenses to software, (B) any outbound agreements that involve consideration of less than $250,000 over the Company or its Subsidiaries after 12 months prior to the date of this Agreement, (BC) any nonexclusive license to Owned Intellectual Property granted in the Ordinary Course of Business, and (D) any non-disclosure agreements or Company employee agreements;
(xii) with a Governmental Authority any labor union or collective bargaining association representing any employee of an Acquired Entity;
(Cxiii) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing)Contribution Agreement; and
(xiiixiv) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeReal Property Lease.
(b) As of the date of this Agreement: (i) Each each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect effect, and enforceable in accordance with its terms against is a valid and binding obligation of (A) the Company or its Subsidiaries andAcquired Entities party thereto, and (B) to the CompanySeller’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or each other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), party thereto; (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are applicable Acquired Entity is not in material breach or material violation of, or material default under any such Material Contract; (iii) no Material Contract has been terminated for cause in writing by any other party thereto; (iv) to the Seller’s Knowledge, no other party is in material breach or material violation of, or material default under, any Material Contract Contract; and (iiiv) no event Acquired Entity has occurred that (with given a written notice of its intent to terminate, materially modify, materially amend or without due notice or lapse otherwise materially alter the terms and conditions of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties theretohas received any written claim of default under any Material Contract. The Company Seller has furnished or made available to Parent the Purchaser true and complete copies of all the Material Contracts in effect as of the date hereof (other than purchase ordersContracts, invoices, and similar confirmatory or administrative documents that are ancillary including any amendments to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)such Material Contracts.
Appears in 2 contracts
Sources: Purchase Agreement, Purchase Agreement (Hennessy Capital Acquisition Corp. III)
Material Contracts. (a) Except as set forth in Section 3.13(a3.01(m) of the Company Aztar Disclosure Schedule contains Letter, neither Aztar nor any of its subsidiaries is a listing party to or bound by, as of the date hereof, any of the following (whether or not in writing), collectively with all exhibits and schedules to such Contracts:
(i) any agreement or series of related agreement providing for the acquisition or disposition of securities of any person or any assets, in each case involving more than $1,000,000 individually or in the aggregate, other than in the ordinary course of business consistent with past practice or in connection with the capital expenditure budgets included in Section 4.01(a)(xi) of the Aztar Disclosure Letter;
(ii) any Contract that imposes payment, cancellation penalties or other obligations in connection with the redevelopment or future operation (other than ordinary course hotel operations) of all or any portion of Aztar’s property, facility or operations in Las Vegas, Nevada (the “Las Vegas Site”);
(iii) any Contract or commitment relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset) in excess of $1,000,000; and
(iv) any Contract that would be required to be filed as an exhibit to an Annual Report on Form 10-K pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act; (the Contracts described in clauses (i) through – (xiii) below iv), together with all exhibits and schedules to whichsuch Contracts, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, being the “Material Contracts”). True, correct A true and complete copies copy of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have each Material Contract has previously been delivered or made available to Parent Pinnacle. Except as individually or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do has not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do had and would not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based have a material adverse effect on any occurrenceAztar, developmenteach Contract by which Aztar or its subsidiaries is bound is a valid and binding agreement of Aztar or one of its subsidiaries enforceable against Aztar or one of its subsidiaries, activity or event contemplated by such Contract)and, aggregate payments to the knowledge of Aztar, the counterparties thereto in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or from affecting creditors rights generally and to equitable principles (whether considered in a proceeding at law or in equity). Aztar and its subsidiaries are not (and to the Company knowledge of Aztar, no counterparty is) in breach or its Subsidiaries violation of or in excess default in the performance or observance of $1,000,000 over the life any term or provision of, and no event has occurred which, with lapse of the Contract time or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) action by a third party or Aztar, would result in a default under, any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent which Aztar or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” subsidiaries is a party or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or by which any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment them is bound or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (of their property is subject, other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiarybreaches, in each case in excess of $200,000;
(viii) any Contract under violations and defaults which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business orhave not had and would not reasonably be expected, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in have a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in adverse effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)on Aztar.
Appears in 2 contracts
Sources: Merger Agreement (Pinnacle Entertainment Inc), Merger Agreement (Pinnacle Entertainment Inc)
Material Contracts. (a) Except for this Agreement, the Parent Employee Benefit Plans and Policies, except as filed with, or disclosed or incorporated in, the Parent SEC Documents or except as set forth on Section 3.13(a) 4.16 of the Company Sellers’ Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to whichSchedule, as of the date of this Agreementhereof, the Company or its Subsidiaries no Seller is a party to or bound by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including (i) any Contracts pursuant to which the Company has with no “material outstanding or executory obligations or Liabilities contract” (as such Contracts as are required to be set forth on Section 3.13(aterm is defined in Item 601(b)(10) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies Regulation S-K of the Contracts listed on Section 3.13(aSEC); (ii) any non-compete or exclusivity agreement that materially restricts the operation of Sellers’ core business; (iii) any asset purchase agreement, stock purchase agreement or other agreement entered into within the Company Disclosure Schedule have previously been made available past six years governing a material joint venture or the acquisition or disposition of assets or other property where the consideration paid or received for such assets or other property exceeded $500,000,000 (whether in cash, stock or otherwise); (iv) any agreement or series of related agreements with any supplier of Sellers who directly support the production of vehicles, which provided collectively for payments by Sellers to Parent such supplier in excess of $250,000,000 during the 12-month period ended December 31, 2008; (v) any agreement or its agents or representativesseries of related agreements with any supplier of Sellers who does not directly support the production of vehicles, together with all amendments thereto):
which, provided collectively for payments by Sellers to such supplier in excess of $100,000,000 during the 12-month period ended April 30, 2009; (ivi) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor purchase of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
aircraft; (vii) any Contract requiring the Company settlement agreement where a Seller has paid or its Subsidiaries may be required to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in pay an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
100,000,000 to settle the Claims covered by such settlement agreement; (ixviii) any material Contract required to that will, following the Closing, as a result of transactions contemplated hereby, be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company between or its Subsidiaries (or Parent among a Seller or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its SubsidiariesRetained Subsidiary, on the one hand, and Purchaser or any labor union, labor organization or works council representing employees of the Company or its SubsidiariesPurchased Subsidiary, on the other hand;
hand (xivother than the Ancillary Agreements); and (ix) any Contract agreements entered into in connection with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate a material joint venture (all Contracts of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employmenttype described in this Section 4.16(a) being referred to herein as “Seller Material Contracts”);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(ib) Each No Seller is in breach of or default under, or has received any written notice alleging any breach of or default under, the terms of any Seller Material Contract or material License, where such breach or default would reasonably be expected to have a Material Adverse Effect. To the Knowledge of Sellers, no other party to any Seller Material Contract or material License is valid in breach of or default under the terms of any Seller Material Contract or material License, where such breach or default would reasonably be expected to have a Material Adverse Effect. Except as would not reasonably be expected to have a Material Adverse Effect, each Seller Material Contract or material License is a valid, binding and binding on the Company or its Subsidiaries, as applicableenforceable obligation of such Seller that is party thereto and, to the Company’s KnowledgeKnowledge of Sellers, the counterparties of each other party thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries andeffect, to the Company’s Knowledge, the counterparties thereto (subject to except as enforceability may be limited by applicable bankruptcy, reorganization, insolvency, reorganizationmoratorium, moratorium fraudulent transfer and other similar Laws relating to or other Laws affecting generally the enforcement of creditors’ rights generally from time to time in effect and subject by general equitable principles relating to general enforceability, including principles of equity)commercial reasonableness, (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract good faith and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)fair dealing.
Appears in 2 contracts
Sources: Master Sale and Purchase Agreement (General Motors Corp), Master Sale and Purchase Agreement (General Motors Corp)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below Except for this Agreement and except for Contracts filed as exhibits to whichthe Company Reports, as of the date of this Agreement, none of the Company or its Subsidiaries is a party to or by which they are bound, other than a Company Benefit Plan, and bound by:
(A) any Contract that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are would be required to be set forth on Section 3.13(a) filed by the Company pursuant to Item 4 of the Company Disclosure Schedule, Instructions to Exhibits of Form 20-F under the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):Exchange Act;
(iB) any Contract relating to Indebtedness for borrowed money involving the payment or receipt of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled amounts by the Company or any of its Subsidiaries, except or relating to indebtedness for borrowed money or any lease or agreement under which the aggregate annual rental payments do not exceed financial guaranty, of more than $200,0001,000,000 in any calendar year on its face;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(vC) any Contract that (A) limits or purports to limitcontains a put, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” call or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or right pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries could be required to make purchase or sell, as applicable, any payment equity interests of any Person or incur assets that have a fair market value or purchase price of more than $1,000,000;
(D) any Liability as a result Contract relating to the formation, creation, operation, management or control of any joint venture;
(E) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the consummation Company or any Person beneficially owning five percent or more of the transactions contemplated by this Agreement, termination outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of employment or bothForm 20-F under the Exchange Act; and
(xviiF) any non-competition Contract or other Contract that limits or purports to limit in any material respect the performance type of business in which requires either (A) annual payments to or from the Company or its Subsidiaries in excess may engage, the type of $300,000 goods or (B) aggregate payments to or from services which the Company or its Subsidiaries may manufacture, produce, import, export, offer for sale, sell or distribute or the manner or locations in excess which any of $1,500,000 over them may so engage in any business or use their assets. Each such Contract described in clauses (A) through (F) above and each such Contract that would be a Material Contract but for the life exception of the agreement and, in each case, that is not terminable by the applicable being filed as an exhibit to the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeReports is referred to herein as a “Material Contract”.
(iii) Each of the Material Contract Contracts is valid and binding on the Company or its Subsidiaries, as applicablethe case may be, and, to the Knowledge of the Company’s Knowledge, the counterparties each other party thereto, and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach ofas would not, or would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect. There is no breach or default under, under any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract Contracts by the Company or its Subsidiaries or, to and no event has occurred that with the Company’s Knowledge, lapse of time or the counterparties thereto. The giving of notice or both would constitute a breach or default thereunder by the Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and thatits Subsidiaries, in each casecase except as would not, do or would not contain any material executory reasonably be expected to, individually or continuing termsin the aggregate, conditions, obligations or rights)have a Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Acorn International, Inc.), Merger Agreement (Tongjitang Chinese Medicines Co)
Material Contracts. (a) Section 3.13(a3.10 (a) of the Company Disclosure Schedule contains a listing Schedules lists each of the following Contracts of the Seller and each of its Subsidiaries (such Contracts, together with all Contracts described concerning the occupancy, management or operation of any Real Property listed or otherwise disclosed in clauses (i) through (xiii) below to which, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a3.10(a) of the Company Disclosure ScheduleSchedules, the being “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money each agreement of the Company Seller or any of its Subsidiaries involving aggregate consideration in excess of $2,500 or requiring performance by any party more than one year from the date hereof, which, in the latter case, cannot be cancelled by the Seller or its Subsidiaries without penalty or to the placing of a Lien without more than thirty (other than a Permitted Lien30) on any material assets or properties of the Company or its Subsidiariesdays’ notice;
(ii) any Contract under which each agreement that relates to employment, compensation, severance or consulting between the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent Seller or any of its Affiliates after Subsidiaries on the Closingone hand and a current or former (to the extent that any obligations remain outstanding) officer, (B) contains any exclusivitydirector, “most favored nation” manager, employee, Affiliate or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability independent contractor of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent Seller or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xivi) all agreements that relate to the sale of any Contract with of the Company Seller’s or any of its Subsidiaries’ assets, other than in the ordinary course of business, for consideration in excess of $2,500;
(ii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise), in each case involving amounts in excess of $2,500;
(iii) all agreements relating to Indebtedness of the Seller or its Subsidiaries, ;
(iv) all agreements between or among the Seller or any of its Subsidiaries on the one hand, hand and any officer, director, manager, stockholder, member of an Affiliate of thereof (other than the Company Seller or its Subsidiaries Subsidiaries) on the other hand;
(v) any agreement (A) granting to the Seller or any of their respective Affiliates its Subsidiaries any right to use, exploit or practice any third party Intellectual Property necessary for or otherwise material to the Business (excluding employee confidentiality other than any license for “shrink-wrap,” “click-through” or other “off-the-shelf” software or for other software that is commercially available to the public generally with annual license, maintenance, support and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments fees of more less than $500,000 per year;
5,000), or (xviB) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of constituting a grant by the Company Seller or any of its Subsidiaries to make any payment third party of any right to use, exploit or incur practice any Liability as a result Intellectual Property;
(vi) all agreements that relate to the ownership of equity securities of any business or enterprise, including equity securities in joint ventures and minority equity investments;
(vii) all franchise, development, royalty, management or other similar agreements;
(viii) all agreements, contracts or understandings containing covenants that in any way purport to restrict the business activity of the consummation of the transactions contemplated by this Agreement, termination of employment Seller or bothits Subsidiaries; and
(xviiix) all collective bargaining agreements or agreements with any other Contract labor organization, union or association to which the performance Seller or any of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticea party.
(ib) Each Material Contract is valid and binding on the Company or Seller and its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, in accordance with its terms and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting generally the enforcement of creditors’ rights generally and subject to by general principles equitable principles). None of equity), (ii) the Company Seller or its Subsidiaries andor, to the CompanySeller’s Knowledge, the counterparties any other party thereto are not is in material breach of, of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminate, any Material Contract and (iii) no Contract. No event or circumstance has occurred that (that, with or without due notice or lapse of time or both) , would constitute an event of default under any Material Contract or result in a material breach of, termination thereof or default under, would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. Complete and correct copies of each Material Contract by the Company or its Subsidiaries or(including all modifications, to the Company’s Knowledge, the counterparties thereto. The Company has amendments and supplements thereto and waivers thereunder) have been made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Buyer.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement, Membership Interest Purchase Agreement (CLS Holdings USA, Inc.)
Material Contracts. (a) Section 3.13(a) Schedule 6.11 sets forth all of the Company Disclosure following Orders or Contracts to which any Seller is a party or by which it is bound and that are currently in effect (or by which the Potential Acquired Assets may be bound or affected) other than the Leases (collectively, whether or not disclosed on Schedule contains a listing of all Contracts described in clauses 6.11, the “Material Contracts”):
(i) through with any labor union or association representing any Employees of any Seller;
(xiiiii) below for the sale after the date hereof of any Potential Acquired Asset owned or used by Sellers for consideration in excess of $15,000,000;
(iii) relating to whichthe pending acquisition by any Seller of any operating business or the capital stock of any other Person;
(iv) which is an IP License with respect to which annual payments or consideration furnished by or to Sellers pursuant to such IP License with respect to the Business is in excess of fifteen million dollars ($15,000,000) in the Current Fiscal Year (other than, (A) in the case of Inbound IP Licenses, (x) off-the-shelf, non-customized computer programs, and (y) non-exclusive licenses granted by suppliers and other service providers of Sellers, in each case, to the extent necessary to use, sell and offer to sell the products and services of such suppliers or service providers, as applicable, and entered into in the Ordinary Course of Business; and (B) in the case of Outbound IP Licenses, non-exclusive licenses to customers, suppliers, vendors and other service providers of Sellers, in each case to the extent necessary for their respective use of the products and services of the Business or for the manufacture of products on behalf of Sellers or provision of services to Sellers in connection therewith and entered into in the Ordinary Course of Business);
(v) which involve any Potential Transferred Agreement (other than purchase orders entered into in the Ordinary Course of Business) the performance of which involves payment by or to any of Sellers of consideration in excess of $15,000,000 over the Current Fiscal Year and which cannot be canceled by notice of ninety (90) days or fewer without penalty or payment; and
(vi) which regard the employment, services, consulting, termination or severance from employment relating to or for the material benefit of any director, officer, employee, independent contractor or consultant of any Seller and require annual payments by any Seller in excess of $400,000.
(b) Sellers have delivered to Buyer true and complete copies of such Material Contracts and any and all amendments, modifications, supplements, exhibits and restatements thereto and thereof in effect as of the date of this Agreement; provided, the Company or its Subsidiaries is a party or by which they are boundhowever, other than a Company Benefit Plan, and that are Sellers shall not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestonesdeliver any Material Contract or amendment, royalties modification, supplement, exhibit or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which restatement thereto that cannot be located notwithstanding the Company or its Subsidiaries grants reasonable efforts of Sellers to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any locate such document if and only if such Material Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticean Assigned Agreement.
(ic) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect effect, has not been amended, modified or supplemented and enforceable in accordance with its terms against is the Company or its Subsidiaries andvalid and binding obligation of the Seller party thereto, and to the Company’s KnowledgeKnowledge of Sellers, the counterparties thereto (subject to applicable each other party thereto, in each case except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting now or hereafter in effect relating to creditor’s rights generally the enforcement of creditors’ rights and subject to or general principles of equity), .
(iid) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, If any Material Contract were to be designated by Buyer for assignment as an Assigned Agreement, upon entry of the Approval Order and (iii) payment of the Cure Costs, no event has occurred that (with Seller is in breach or without due notice or lapse of time or both) would result in a material breach of, or default under, under any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Contract.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Sears Holdings Corp), Asset Purchase Agreement (Esl Partners, L.P.)
Material Contracts. (a) Section 3.13(aSchedule 3.11 contains an accurate description of all agreements, contracts, commitments, and other instruments and arrangements (whether written or oral) of the Company Disclosure Schedule contains a listing of all Contracts types described in clauses below (i) through by which the Companies or any of their assets, businesses, or operations receive benefits, or (xiiiii) below to which, as of which the date of this Agreement, the Company or its Subsidiaries is Companies are a party or by which they the Companies are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which insignificant contracts entered into in the Company has ordinary course of business consistent with no material outstanding or executory obligations or Liabilities past practice (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True):
(i) leases, licenses, permits, franchises, insurance policies, warranties, guarantees, Governmental Approvals, and other contracts concerning or relating to the Companies’ real property,
(ii) contracts for capital expenditures in excess of $50,000 each;
(iii) performance bonds, completion bonds, bid bonds, suretyship agreements and similar instruments;
(iv) joint venture, partnership, and similar contracts involving a sharing of profits and/or expenses;
(v) agreements providing for the leasing to or by the Companies of personal property;
(vi) Line Extension Agreements; and
(vii) agreements or instruments under which the Companies have acquired or hold their Water Rights; and
(b) Seller has delivered to Purchaser complete and correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representativesall written Material Contracts, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(ic) Each All Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is Contracts are in full force and effect and enforceable against each party thereto. To the Knowledge of Seller, except for an existing subcontractors claim and existing mechanics lien in accordance with its terms against the Company or its Subsidiaries andapproximate amount of $107,000.00, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are there does not in material breach of, or default under, exist under any Material Contract and (iii) no any event has occurred that (with of default or without due event or condition that, after notice or lapse of time or both) , would result in constitute a material breach ofviolation, breach, or event of default under, thereunder on the part of the Companies or any other party thereto. No consent of any third party is required under any Material Contract by as a result of or in connection with, and the Company or its Subsidiaries or, to the Company’s Knowledgeenforceability of any Material Contract will not be affected in any manner by, the counterparties thereto. The Company has made available to Parent true execution, delivery and complete copies performance of all Material Contracts in effect as this Agreement or the consummation of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)transactions contemplated hereby.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Global Water Resources, Inc.), Asset Purchase Agreement (Global Water Resources, Inc.)
Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to the Company SEC Reports that are made available to Parent prior to the date hereof or set forth in Section 3.13(a) 4.14 of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to whichSchedule, as of the date hereof, none of this Agreement, the Company or its Subsidiaries is a party to or bound by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):Contract that:
(i) any Contract relating would be required to Indebtedness for borrowed money be filed by the Company pursuant to Item 4 of the Company or its Subsidiaries or Instructions to Exhibits to the placing of a Lien (other than a Permitted Lien) Company’s most recently filed annual report on any Form 20-F under which there are material assets rights or properties of the Company or its Subsidiariesobligations outstanding;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business orwould, individually or in the aggregate, prevent, materially delay or materially impair the Company’s ability to consummate the Transactions;
(iii) is (A) an indenture, credit agreement, loan agreement, security agreement, guarantee, note, or mortgage, or (B) a Contract relating to Indebtedness or Encumbrance, in each case, having an outstanding amount in excess of $200,000 500,000 individually or made $3,000,000 in the aggregate other than (x) intercompany agreements or (y) a Contract in respect of any capital contribution tobank acceptance, cash collateralized letter of guarantees, letter of credit, pledge or deposit to secure the performance of bids, trade contracts, leases, surety and appeal bonds, performance bonds and other investment in, any Personobligations of a similar nature provided that the aggregate outstanding amount of Indebtedness referred to in clause (y) shall not exceed $4,000,000;
(ixiv) any is a Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or any of its Subsidiaries was granted any land use rights;
(v) involves the acquisition from another Person or Parent disposition to another Person, directly or indirectly (by merger, license, Contract or otherwise), of share capital, other equity interests or control of another Person including the acquisition of all or substantially all assets of such Person (1) which took place after December 31, 2012, or (2) contains representations, warranties, covenants, indemnities, tax sharing provisions or other obligations (including indemnification, “earn-out” (when in cash or in any other form of consideration) or other contingent obligations) that are still in effect and, individually, could reasonably be expected to result in payments by the Company or any of its Affiliates after Subsidiaries in excess of $1,000,000. As of June 30, 2013, the Closingaggregate amount of contingent payment obligations arising out of acquisitions by the Company, determined in a manner consistent with GAAP, is approximately $36 million;
(vi) prohibits the payment of dividends or distributions in respect of the share capital of the Company or any of its wholly owned Subsidiaries, prohibits the pledging of the share capital of the Company or any of its wholly owned Subsidiaries or prohibits the issuance of any guaranty by the Company or any of its wholly owned Subsidiaries;
(vii) is a license agreement that is material to the business of the Company and its Subsidiaries, taken as a whole, pursuant to which the Company or may be required to pay milestones, royalties any of its Subsidiaries licenses in Intellectual Property or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which licenses out Intellectual Property owned by the Company or its Subsidiaries grants (other than license agreements for commercially available software on standard terms);
(viii) (in respect of any master service agreement with a customer that is any of the top twenty (20) customers of the Company for the financial year ended December 31, 2012, or any statements of work or purchase orders under such master service agreement only), contains provisions that prohibit the Company or any of its Subsidiaries from competing in any material line of business in any material respect, grant a right of exclusivity to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of which prevents the Company or its Subsidiaries from entering any territory, market or field anywhere in the world in any material respect, subject the Company or any of its Subsidiaries to “most favored nation,” “benchmarking” or “price downward adjustment” obligations, or could require the Company or any of its Subsidiaries to transfer any of its assets or operations (including CDCs) to a third party;
(ix) provides for any change of control or similar payments in excess of $3,000,000;
(x) is a Contract (excluding purchase orders or statements of work) under which the acquisition actual payment or receipt of amounts by the Company or its Subsidiaries of the assets or business of any other Person more than $6,000,000 (other than acquisitions or dispositions made any Contract referenced in clause (xii) below) during the Ordinary Course of Business)first six (6) months for the financial year ending December 31, or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation2013;
(xiixi) any settlement, conciliation is a master service agreement or similar Contract (A) requiring monetary payments by excluding purchase orders or statements of work), between the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the top twenty (20) customers of the Company or its Subsidiariesfor the financial year ended December 31, 2012, on the other hand;
(xivxii) is a joint venture contract, strategic cooperation or partnership arrangement (including cooperation or long-term agency contracts entered into at the corporate headquarters level with insurance companies), or any Contract with other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any third party;
(xiii) is between the Company or any of its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company directors or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) executive officers of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result their immediate family members or shareholders of the consummation Company or any Subsidiary holding more than 5% of the transactions contemplated by this Agreementvoting securities of the Company or any Subsidiary, termination of employment on the other hand, under which there are material rights or both; andobligations outstanding;
(xviixiv) involves waiver, compromise, or settlement of any Action, other than the settlement of any Action (A) in the ordinary course of business and consistent with past practice or (B) involving an amount in dispute of not more than $500,000;
(xv) is between the Company or any of its Subsidiaries, on the one hand, and a Governmental Authority, on the other hand, with a transaction amount of more than $2,000,000; or
(xvi) any other Contract Contracts, whether or not made in the performance ordinary course of business, the absence of which requires either would reasonably be expected to have a Material Adverse Effect. Each such Contract described in clauses (Ai) annual payments through (xvi) above is referred to herein as a “Material Contract”; provided that Material Contracts shall not include any (x) Benefit Plans, (y) any purchase orders or from statements of work and (z) any management, employment, severance, change in control, transaction bonus, consulting, repatriation or expatriation agreement or other Contract between the Company or one of its Subsidiaries and any Service Provider with respect to which the Company or one of its Subsidiaries has or may have any material liability or obligation, which Contracts are dealt with exclusively in Section 4.10.
(b) Except as would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries party thereto and, to the Company’s Knowledge, the counterparties thereto (other parties thereto, in each case subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights Bankruptcy and subject to general principles of equity), Equity Exception; (ii) neither the Company or nor any of its Subsidiaries andnor, to the Company’s Knowledge, the counterparties any other party thereto are not is in material breach or violation of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice not occurred through the Company’s or lapse any of time its Subsidiaries’ action or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries inaction or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Material Contract; and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary iii) to the main contractual relationship between Company’s Knowledge, the parties to a particular Contract Company and its Subsidiaries have not received any written claim or group notice of Contracts and thatdefault, in each case, do not contain termination or cancellation under any material executory or continuing terms, conditions, obligations or rights)such Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Chen Chris Shuning), Merger Agreement (Pactera Technology International Ltd.)
Material Contracts. (a) Section 3.13(aSchedule 3.16(a) sets forth a list of all Contracts (other than purchase, sale or service orders executed in the ordinary course of business) of the Company Disclosure Schedule contains a listing of all Contracts type described in clauses (i) through (xiii) below to which, as of which the Business Entities are a party that are in effect on the date of this Agreement, the Company or its Subsidiaries Agreement (each contract that is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedulelisted in Schedule 3.16(a), the being a “Material ContractsContract”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness agreement for borrowed money the purchase by any Business Entity of metal or metal additives that has a remaining term of more than one year and is not terminable without penalty with ninety (90) days’ notice and requires annual payments by the Company Business Entities of $5,000,000 or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiariesmore;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property agreement (other than real property), owned for the purchase of metal or metal additives) for the purchase or sale by any other PersonBusiness Entity of materials, except for any lease supplies, goods, services, equipment or agreement under which assets that has a remaining term of more than one year and is not terminable without penalty within ninety (90) days’ notice and requires annual payments to, or receipts by, the aggregate annual rental payments do not exceed Business Entities of $500,0002,500,000 or more;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each caseother than exclusive distribution agreements, any tangible property (other than real property), owned agreement that contains noncompetition covenants that prohibit the Business Entities from freely engaging in any business or controlled by the Company in any geographic territory or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000market;
(iv) any (A) joint venturemortgage, profit-sharingindenture, partnershipnote, collaboration, co-promotion, commercialization bond or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected other agreement relating to require (based on any occurrence, development, activity or event contemplated Indebtedness incurred by such Contract), aggregate payments to or from the Company or its Subsidiaries Business Entities with an outstanding principal amount in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)250,000;
(v) any Contract that (A) limits partnership, joint venture, franchise or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or other similar equity investment agreements with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closingthan a Business Entity;
(vi) any Contract agreement granting any of the Business Entities the right to use, exploit or practice any Intellectual Property owned by third parties (other than COTS Licenses) requiring any future capital commitment or capital expenditure (or series of capital expenditures) annual payments by the Company Business Entities of $500,000 or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreementmore;
(vii) except for transactions between or among Business Entities, any Contract requiring agreement entered during the Company three-year period prior to the date of this Agreement relating to the acquisition or its Subsidiaries to guarantee the Liabilities disposition of any Person business (other than the Company whether by merger, sale of stock, sale of assets or a Subsidiaryotherwise) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess having an aggregate purchase price of $200,0005,000,000 or more;
(viii) an employment agreement or employment contract between Parent, Aleris International or any Contract under Business Entity in which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment amount of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount base salary is in excess of $200,000 or made any capital contribution to, or other investment in, any Person165,000;
(ix) any Contract required to be disclosed on Section 3.19 with any Governmental Entity for the sale of the Company Disclosure Schedulegoods or services involving annual payments in excess of $500,000;
(x) any lease, sublease or similar Contract (including sale-leaseback arrangements) for personal property with any Person person involving annual payments in excess of $500,000 and under which (A) pursuant to which the Company any Seller or its Subsidiaries (Business Entity is lessee of, or Parent holds or uses, any of its Affiliates after the Closing) is or may be required to pay milestonesmachinery, royalties equipment, vehicle or other contingent payments based on tangible personal property owned by any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events person or (B) under which the Company any Seller or its Subsidiaries grants to Business Entity is a lessor or sublessor of, or makes available for use by any Person Person, any right of first refusal, right of first negotiation, option to purchase, option to license tangible personal property owned or any other similar rights with respect to any material Company Product leased by such Seller or any material Intellectual PropertyBusiness Entity;
(xi) any Contract for entered into in connection with the disposition settlement or other resolution of any portion of Action pursuant to which any Seller (solely in connection with the assets Business) or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of Business Entity has any other Person (ongoing performance obligations, other than acquisitions Contracts entered into in connection with the settlement or dispositions made in the Ordinary Course resolution of Business), severance or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligationworkers’ compensation matters;
(xii) any settlement, conciliation Contract granting the other party to such Contract or similar Contract a third party “most favored nation” status that has a remaining term of more than one year and is not terminable without penalty with ninety (A90) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing)days’ notice; andor
(xiii) each collective bargaining any agreement associated with h▇▇▇▇▇, derivatives or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement andinstruments, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticehaving a termination value in excess of $1,000,000.
(ib) Sellers have made available to Buyer accurate and complete copies of each Material Contract. Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and is enforceable by the Business Entities, as applicable, in accordance with its terms against the Company or its Subsidiaries andterms, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other except as limited by Laws affecting generally the enforcement of creditors’ rights and subject to generally, by general equitable principles or by the discretion of equityany Governmental Authority before which any Action seeking enforcement may be brought. Except as set forth in Schedule 3.16(b)(ii), neither Parent nor Sellers have received written notice of any termination, cancellation or threatened termination or cancellation by any party to any Material Contract.
(iic) None of the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto Business Entities are not in default of in any material breach ofrespect, or have received any written notice of any default underor event that, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time time, or both) , would result constitute a default in a any material breach of, or default under, respect by the Business Entities under any Material Contract by Contract. To the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as knowledge of the date hereof (Sellers, no other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties party to a particular Material Contract or group of Contracts and that, is in each case, do not contain default in any material executory or continuing terms, conditions, obligations or rights)respect of such Material Contract.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Aleris Corp), Purchase and Sale Agreement (Signature Group Holdings, Inc.)
Material Contracts. Schedule 2.8 sets forth a list of all of the following contracts and agreements for the Company and the Subsidiaries:
(a) Section 3.13(a) all contracts or leases, and guarantees of contracts or leases, with respect to which the Company Disclosure Schedule contains or any Subsidiary has a listing stated obligation or expected payments of all Contracts described in clauses (i) through (xiii) below to which, as of more than $100,000 within the period from the date of this AgreementAgreement through December 31, the Company or its Subsidiaries is a party or by which they are bound2013, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which purchase orders entered into in the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) ordinary course of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiariesbusiness;
(iib) any Contract under which contracts relating to Closing Indebtedness, the Company or its Subsidiaries is lessee borrowing of or holds or operatesmoney, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled guaranty by the Company or its Subsidiaries, except any Subsidiary of any obligation for the borrowing of money or any lease or agreement capital lease;
(c) contracts under which the aggregate annual rental amount payable by the Company or any Subsidiary is dependent on the revenue, income or other similar measure of the Company, any Subsidiary or any other Person and the expected payments do not by the Company or such Subsidiary thereunder is expected to exceed $200,000100,000 within the period from the date of this Agreement through December 31, 2013;
(ivd) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or agreements with any Person non-compete, exclusivity or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict provision that restricts the ability of the Company or its Subsidiaries any Subsidiary to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, conduct business in any material respect, Parent or any of its Affiliates after the Closing;
(vie) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary employment agreements that contemplate payments by the Company or its Subsidiaries after the date any Subsidiary in excess of this Agreement, $100,000 per annum (B) with a Governmental Authority or (C) that imposes excluding statutory employment agreements required by any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closingforeign Legal Requirement below $150,000 per annum); and;
(xiiif) each collective bargaining agreement or other Contract contracts with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization union or works council representing association relating to current employees of the Company or its Subsidiariesany Subsidiary, on the other handor collective bargaining agreements;
(xivg) contracts with any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment)Company;
(xvh) any employmentmaterial original equipment manufacturer, consultingsupply, bonus, commissions distribution or any other compensation Contract reseller agreements;
(i) material research and development agreements;
(j) contracts with an employee Governmental Authorities or individual consultant or independent contractorstate corporations, involving aggregate a stated obligation or expected payments of more than $500,000 per year100,000;
(xvik) material strategic alliance, partnership or joint venture agreements;
(l) contracts with any employment or consulting Contract Material Customer;
(m) contracts with severance, change any Material Vendor;
(n) contracts providing for consultation services in control, retention or similar arrangements, that will result in any obligation excess of $100,000 per annum;
(absolute or contingento) of material contracts for which the Company or any Subsidiary is the recipient or grantor of its Subsidiaries a license or sublicense (of any tier) of any Intellectual Property, except licenses to make any payment software that is generally commercially available (the “IP Licenses”);
(p) all Leases;
(q) contracts involving the purchase, storage or incur any Liability as a result disposal of the consummation of the transactions contemplated by this Agreement, termination of employment or bothHazardous Substances; and
(xviir) any other Contract contracts involving the government of or performance of in a foreign state against which requires either the United States now has or has maintained within the last five (A5) annual payments to years trade sanctions or from travel restrictions or which the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life United States has listed as a terrorist state. All of the agreement and, in each case, that is not terminable by foregoing contracts are sometimes collectively referred to herein as the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice“Material Contracts.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. ” The Company has made available to Parent true and complete correct copies of all Material Contracts in effect Contracts. The Company or such Subsidiary, as the case may be, and to the knowledge of the date hereof (Company, each other than purchase ordersparty thereto has performed all material obligations required thereunder. Neither the Company nor any of the Subsidiaries is in default in any material respect of any Material Contract. To the knowledge of the Company, invoicesno third party is in default in any material respect of any Material Contract. Except as set forth on Schedule 2.4, neither the execution and similar confirmatory or administrative documents that are ancillary to delivery of this Agreement nor the main contractual relationship between consummation of the parties Transactions will afford any other party to a particular Material Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)the right to terminate such Material Contract.
Appears in 2 contracts
Sources: Securities Purchase Agreement, Securities Purchase Agreement (Gsi Group Inc)
Material Contracts. (a) Section 3.13(aSchedule 3.18(a) of the Company Contributor Disclosure Schedule contains Letter sets forth a listing of all Contracts described in clauses (i) through (xiii) below to whichtrue and complete list, as of the date Execution Date, of this Agreement, the Company or its following to which any of the Contributor Subsidiaries is a party or by which they any of their respective assets are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto)::
(i) any Contract relating to Indebtedness each contract that provides for borrowed money the acquisition, disposition, license, use, distribution, or outsourcing of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets assets, services, rights, or properties with respect to which Contributor reasonably expects that the Contributor Subsidiaries will make annual payments in excess of the Company $10,000,000 or its Subsidiariesaggregate payments in excess of $100,000,000;
(ii) each contract relating to Indebtedness for Borrowed Money or the deferred purchase price of property by any Contract under which of the Company Contributor Subsidiaries (whether incurred, assumed, guaranteed, or its Subsidiaries is lessee of or holds or operatessecured by any asset), in each case, any tangible property (other than real property), owned by any other Person, except for any lease agreements solely between or agreement under which among the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Contributor Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in those involving an amount in excess of (A) $300,000 annually Indebtedness for Borrowed Money or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business ordeferred purchase price, individually or in the aggregate, of no more than $100,000,000;
(iii) any acquisition or divestiture contract that contains “earn out” or other contingent payment obligations, or remaining indemnity or similar obligations, for which any Contributor Subsidiary may be liable;
(iv) each contract for lease of personal property or real property (other than the Contributor Real Property Leases and the Contributor Rights-of-Way) involving payments in excess of $10,000,000 in any calendar year or aggregate payments in excess of $100,000,000 that are not terminable without penalty or other liability to the Contributor Subsidiaries (other than any ongoing obligation pursuant to such contract that is not caused by any such termination) within 60 days;
(v) each contract that is a non-competition contract or other contract that (A) purports to limit in any material respect either the type of business in which the Contributor Subsidiaries may engage or the manner or locations in which any of them may so engage in any business, (B) could require the disposition of any material assets or line of business of the Contributor Subsidiaries, or (C) prohibits or limits the rights of the Contributor 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;
(vi) each Hydrocarbon purchase and sale, gathering, treating, transportation, processing, compression or similar contracts entered into by any Contributor Subsidiary that (A) (1) if a fee-based contract, provides for aggregate payments to or from such Contributor Subsidiary during any fiscal year in excess of $25,000,000, or (2) if a percentage of proceeds contract, is reasonably anticipated to result in a share of proceeds retained by such Contributor Subsidiary for its own account during any such fiscal year in excess of $25,000,000, or (B) (y) involves the gathering, treating, transportation, processing, compression, purchase, sale, or storage of more than 50 MMcf of gaseous Hydrocarbons per day, or 2,500 barrels of liquid Hydrocarbons per day, or (2) provides for an acreage dedication or similar commitment;
(vii) each contract for any Derivative Transaction;
(viii) each collective bargaining agreement or other labor-related contract with a labor union, works council, or other labor organization;
(ix) any employment contract that (i) requires annualized base salary payments in excess of $150,000, (ii) provides for change in control or transaction bonuses, or (iii) provides for severance in excess of one month of base salary or notice of termination in excess of thirty (30) days;
(x) each material partnership, joint venture, or limited liability company agreement;
(xi) each agreement under which any of the Contributor Subsidiaries has advanced or loaned any amount of money to any of its officers, directors, employees, or consultants, in each case with a principal amount in excess of $150,000;
(xii) any contract not entered into in the ordinary course of business that is a water rights agreement or disposal agreement or relates to the sourcing, transportation, or disposal of water (including brine water and flowback water) that (A) provides for an acreage dedication in excess of 10,000 gross surface acres, or (B) that could reasonably be expected to result in the receipt or payment by any of the Contributor Subsidiaries of an amount in excess of $100,000,000 over the remaining term of such agreement;
(xiii) any contract that provides for a “take-or-pay” clause or any similar prepayment obligation, acreage dedication, minimum volume commitments, area of mutual interest or capacity reservation fees;
(xiv) any contract with any Governmental Entity (other than the Contributor Permits);
(xv) any contract that obligates any of the Contributor Subsidiaries to make any future capital commitment, loan, or expenditure in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year100,000,000;
(xvi) each contract for any employment Contributor Related Party Transaction;
(xvii) each agreement that contains any “most favored nation” or consulting Contract with severancemost favored customer provision, change in controlcall or put option, retention preferential right, or similar arrangementsrights of first or last offer, that will result negotiation, or refusal, other than those contained in any obligation (absolute or contingent) agreement in which such provision is solely for the benefit of the Company or Contributor Subsidiaries, to which any of its the Contributor Subsidiaries is subject, and is material to make any payment or incur any Liability the business of the Contributor Subsidiaries, taken as a result of whole;
(xviii) each contract that constitutes a pipeline interconnect or facility operating agreement;
(xix) any contract whereby the consummation of Contributor Subsidiaries lease capacity (whether firm or interruptible) on a third party pipeline or lease capacity on the transactions contemplated by this Agreement, termination of employment or bothContributor Midstream Facilities to a third-party shipper; and
(xviixx) any other Contract the performance of which contract that requires either (A) annual or entitles any Contributor Subsidiary to make or receive payments to or from the Company or its Subsidiaries in excess of $300,000 10,000,000 or (Bmore annually; provided, however, that Contributor shall have no obligation to list any contract on Schedule 3.18(a) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement andContributor Disclosure Letter to which Permian Highway JV is a party, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticebut all such contracts shall otherwise constitute Contributor Contracts for purposes of Section 3.18(b).
(ib) Each Material Contract is valid Collectively, the contracts set forth in Section 3.18(a) (excluding, for the avoidance of doubt, any Contributor Real Property Lease or Contributor Right-of-Way) are herein referred to as the “Contributor Contracts.” A complete and binding on correct copy of each of the Company or its Subsidiaries, as applicable, Contributor Contracts has been made available to the Company. Except as has not had and would not have, individually or in the aggregate, a Contributor Material Adverse Effect, each Contributor Contract is legal, valid, binding, and enforceable in accordance with its terms on the Contributor Subsidiary that is a party thereto and, to Contributor’s Knowledge, the counterparties each other party thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries andeffect, subject, as to enforceability, to Creditors’ Rights. Except as has not had and would not have, individually or in the Companyaggregate, a Contributor Material Adverse Effect, (i) neither Contributor nor any of the Contributor Subsidiaries is in breach or default under any Contributor Contract nor, to Contributor’s Knowledge, the counterparties thereto (subject is any other party to applicable bankruptcyany such Contributor Contract in breach or default thereunder, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or the lapse of time or both) the giving of notice or both would result in constitute a material breach of, or default under, any Material Contract thereunder by the Company or its Subsidiaries Contributor Subsidiaries, or, to the CompanyContributor’s Knowledge, the counterparties any other party thereto. The Company has made available There are no disputes pending or, to Parent true Contributor’s Knowledge, threatened with respect to any Contributor Contract and complete copies of all Material Contracts in effect as neither Contributor nor any of the date hereof (Contributor Subsidiaries has received any written notice of the intention of any other than purchase ordersparty to any Contributor Contract to terminate for default, invoicesconvenience, and similar confirmatory or administrative documents that are ancillary otherwise any Contributor Contract, nor Contributor’s Knowledge, is any such party threatening to the main contractual relationship between the parties to a particular Contract or group of Contracts and thatdo so, in each casecase except as has not had or would not have, do not contain any material executory individually or continuing termsin the aggregate, conditions, obligations or rights)a Contributor Material Adverse Effect.
Appears in 2 contracts
Sources: Contribution Agreement (Blackstone Holdings III L.P.), Contribution Agreement (Altus Midstream Co)
Material Contracts. (a) Section 3.13(a) Other than Contracts existing as of the Closing between the Company or a Subsidiary of the Company, on one hand, and Investor or an Affiliate of Investor, on the other hand, Section 4.18 of the Disclosure Schedule contains sets forth a listing true, correct, and complete list of all Contracts described in clauses (i) through (xiii) below to which, as of the date of this Agreement, which the Company or any of its Subsidiaries is a party party, or by which they are the Company or any of its Subsidiaries is bound, other than a Company Benefit Plan, and that are not expired material to the business, operations, financial condition, or have not been terminated and not including any Contracts pursuant to which results of operations of the Company has with no material outstanding or executory obligations or Liabilities any of its Subsidiaries (such Contracts as are required to be set forth listed on Section 3.13(a) 4.18 of the Company Disclosure Schedule, the “Material Contracts”). TrueExcept as set forth in Section 4.18 of the Disclosure Schedule, correct the Company is not party to any Contract with Clean Coal Solutions Services, LLC.
(b) Neither the Company nor any of its Subsidiaries has breached or defaulted under, nor is there any written claim or threat that the Company or any of its Subsidiaries has breached or defaulted under, any term or condition of any Material Contract. Each Material Contract is in full force and effect and is a valid and binding agreement of and enforceable against the Company or its Subsidiary, as applicable, and, to the Company’s Knowledge, the other parties thereto, and, to the Company’s Knowledge, no other party to any such Material Contract is in default under such Material Contract. To the Company’s Knowledge, there are no circumstances that are reasonably likely to occur that could reasonably be expected to adversely affect the Company’s or its Subsidiaries’ ability to perform their obligations under any Material Contract. The Company has delivered to the Investor and the Investor’s legal counsel true, correct, and complete copies of the all Material Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, (together with all amendments amendments, modifications, and supplements thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease and no Material Contract has been rescinded or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled terminated by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;applicable Subsidiary of the Company.
(ivc) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from Each Contract between the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees Affiliate of the Company or (excluding its Subsidiaries), on the other hand;
(xiv) any Contract , was entered into in the ordinary course of business, is consistent with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate past practice of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)on an arm’s-length basis.
Appears in 2 contracts
Sources: Class B Unit Purchase Agreement (Ada-Es Inc), Class B Unit Purchase Agreement (Ada-Es Inc)
Material Contracts. (a) Section 3.13(a3.15(a) of the Company Disclosure Schedule contains a listing true, complete and correct list of all Contracts described in clauses (i) through (xiii) below to which, as each of the date of this Agreementfollowing contracts, agreements and commitments (including, without limitation, oral and informal arrangements to the Company or its Subsidiaries is a party or by which they extent the same are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant material to the Business) to which the Company has with no material outstanding or executory obligations or Liabilities any Subsidiary is a party (such Contracts as are required to be contracts and agreements, together with all contracts, agreements, leases and subleases concerning the management or operation of any Leased Real Property (including, without limitation, brokerage contracts) listed in Section 3.17(a) or 3.17(b) of the Company Disclosure Schedule, and all agreements set forth on in Section 3.13(a3.16(a) of the Company Disclosure Schedule, the “"Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto"):
(i) each contract, agreement, invoice, purchase order and other arrangement for the purchase of inventory, spare parts, other materials or personal property with any Contract relating supplier or for the furnishing of services to Indebtedness for borrowed money the Company, any Subsidiary or otherwise related to the Business under the terms of which the Company or its Subsidiaries any Subsidiary could reasonably be expected to pay or to otherwise give consideration of more than US$25,000 in the placing aggregate during the fiscal year ending March 31, 1999 or US$250,000 over the remaining term of a Lien (other than a Permitted Lien) on any material assets or properties of such contract, and which cannot be canceled by the Company or its Subsidiariessuch Subsidiary without penalty or further payment and without more than 30 days' notice;
(ii) each contract, agreement, invoice, sales order and other arrangement for the sale of inventory or other personal property or for the furnishing of services by the Company or any Contract Subsidiary or otherwise related to the Business under the terms of which the Company or its Subsidiaries is lessee any Subsidiary could reasonably be expected to receive consideration of or holds or operates, more than US$25,000 in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do during the fiscal year ending March 31, 1999 or US$250,000 over the remaining term of the contract, and which cannot exceed $500,000be canceled by the Company or such Subsidiary without penalty or further payment and without more than 30 days' notice;
(iii) any Contract under which the Company each broker, distributor, dealer, manufacturer's representative, franchise, agency, sales promotion, market research, marketing consulting and advertising contract, agreement or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000commitment;
(iv) each contract, agreement or commitment with any present or former employee, independent contractor or consultant (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization excluding routine engagement letters with individual attorneys or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contractslaw firms);
(v) any Contract that (A) limits each contract, agreement or purports commitment relating to limit, in any material respect, the freedom Indebtedness of the Company or its Subsidiaries any Subsidiary;
(vi) each contract, agreement or commitment with any Governmental Authority;
(vii) each contract, agreement or commitment limiting or purporting to engage limit the ability of the Company, any Subsidiary, the Business or any successor thereto to compete in any line of business or with any Person person or in any geographic area or that would so limit or purport to limit, in during any material respect, the operations period of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000time;
(viii) any Contract under which each contract, agreement or commitment between or among the Company or its Subsidiaries has, directly any Subsidiary and the Company or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside affiliate of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any PersonCompany;
(ix) each contract, agreement or commitment providing for benefits under any Contract required to be disclosed on Section 3.19 of the Company Disclosure SchedulePlan;
(x) any Contract with any Person (A) pursuant to which the Company each contract, agreement or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) commitment under which the Company has obtained or its Subsidiaries grants to will obtain any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for each contract, agreement or commitment that materially limits or restricts, or could reasonably be expected to materially limit and restrict, the disposition of any portion of the assets or business ability of the Company or its Subsidiaries any Subsidiary or, immediately after the Effective Time, Nu Skin or for any subsidiary thereof, to use, modify, display, reproduce, distribute, license, sell or provide the acquisition by the Company Company's or its Subsidiaries of the assets any Subsidiaries' products or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligationservices;
(xii) each contract, agreement or commitment, whether or not made in the ordinary course of business, which is material to the Company, any settlement, conciliation Subsidiary or similar Contract (A) requiring monetary payments by the Company conduct of the Business or its Subsidiaries after the date absence of this Agreement, (B) with which could reasonably be expected to have a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing)Material Adverse Effect; and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, research and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticecollaboration contract.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).
Appears in 2 contracts
Sources: Merger Agreement (Nu Skin Enterprises Inc), Merger Agreement (Nu Skin Enterprises Inc)
Material Contracts. (a) Section 3.13(aThe Disclosure Letter attached hereto lists, and the Company has made available to Purchaser, true and complete copies of all material contracts or other obligations (the "Material Contracts") to which any member of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as of the date of this Agreement, the Company or its Subsidiaries Group is a party or by which they are it is bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) those of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):following types:
(i) Employment agreements and any Contract relating other material contracts with or loans to Indebtedness for borrowed money any of the Company Group's shareholders, officers, directors, employees, consultants, distributors or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiariessales representatives;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other PersonAny Benefit Plans, except for Benefit Plans maintained by any lease or agreement under which of the aggregate annual rental payments do ESC Foreign Subsidiaries where such Plans maintained by the ESC Foreign Subsidiaries will not exceed $500,000give rise to a Material Adverse Effect on the Company Group;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000Any material contracts with customers;
(iv) any (A) joint ventureAny deeds of trust, profit-sharingmortgages, partnershipconditional sales contracts, collaborationsecurity agreements, co-promotionpledge agreements, commercialization or research or development Contracttrust receipts, or similar Contract, in each case, which requires, any other agreements or would reasonably be expected to require (based on arrangements whereby any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from assets of the Company Group are subject to a lien, encumbrance, charge or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)restriction;
(v) any Contract that (A) limits Any loan agreements, letters of credit or purports to limit, in any material respect, the freedom lines of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closingcredit;
(vi) Any contracts restricting in a material respect any Contract requiring any future capital commitment or capital expenditure (or series member of capital expenditures) by the Company Group from doing business or its Subsidiaries competing in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreementany area;
(vii) Other than purchase orders issued or received in the ordinary course of business, any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case contracts calling for aggregate payments in excess of $200,000100,000 which are not terminable without material cost or liability on notice of 90 days or less;
(viii) any Contract under which the Company Any joint venture, partnership, limited liability company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Personlimited partnership agreement;
(ix) Any guarantees of the obligations of any Contract required to be disclosed on Section 3.19 other party (including other members of the Company Disclosure ScheduleGroup) except those resulting from the endorsement of customer checks deposited for collection;
(x) any Contract with any Person (A) pursuant to Any other contracts which may have a material impact on the Company Group's assets, results of operations or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;financial condition; and
(xi) Any commitment to enter into any Contract for the disposition of any portion of the assets or business foregoing. In the case of each Material Contract, the member of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business Group party thereto has not received notice of any other Person (other than acquisitions default under any such contracts, obligations or dispositions made commitments, and is not in the Ordinary Course of Business)default under any such contracts, obligations or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlementcommitments, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with where such default would have a Governmental Authority or (C) that imposes any material, non-monetary obligations Material Adverse Effect on the Company or its Subsidiaries (or Parent or Group. To the knowledge of the Company, no other party to each Material Contract is in default where such default would have a Material Adverse Effect on the Company Group. Except as set forth in the Disclosure Letter, no consent is required under any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract Material Contracts in connection with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).
Appears in 2 contracts
Sources: Merger Agreement (Fauth John J), Merger Agreement (Tsi Inc /Mn/)
Material Contracts. (a) Except for this Agreement and for the Contracts disclosed in the Filed Company SEC Documents, Section 3.13(a4.14(a) of the Company Disclosure Schedule contains Letter sets forth a listing of all Contracts described in clauses (i) through (xiii) below to whichtrue and complete list, as of the date of this Agreement, and the Company or its Subsidiaries is has made available to Parent true and complete copies, of:
(i) each Contract that would be required to be filed by the Company as a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) each Contract to which the Company has with no material outstanding or executory obligations or Liabilities any Company Subsidiary is a party that (such Contracts as are required to be set forth on Section 3.13(aA) restricts the ability of the Company Disclosure Scheduleor any Company Subsidiary to compete in any business or with any Person in any geographical area, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a(B) of requires the Company Disclosure Schedule have previously been made available or any Company Subsidiary to Parent conduct any business on a “most favored nations” basis with any third party (C) provides for “exclusivity” or its agents any similar requirement in favor of any third party or representatives(D) provides preferential rights or rights of first or last offer or refusal to any third party, together with all amendments thereto):except in the case of each of clauses (A), (B), (C) and (D) for such restrictions, requirements and provisions that are not material to the Company and the Company Subsidiaries, taken as a whole;
(iiii) each Contract under which the Company or any Company Subsidiary licenses or sublicenses Intellectual Property from or to any third party (other than generally commercially available, off-the-shelf software programs), except for such licenses and sublicenses that are not material to the Company and the Company Subsidiaries, taken as a whole;
(iv) each Contract to which the Company or any Company Subsidiary is a party that provides for any payment, receipt or expenditure in excess of $250,000 in any twelve (12) month period;
(v) each Contract that constitutes a commitment relating to Indebtedness for borrowed money or the deferred purchase price of property by the Company or its Subsidiaries any Company Subsidiary (whether incurred, assumed, guaranteed or to the placing secured by any asset) in excess of a Lien ($250,000, other than a Permitted Lien) on any material assets Contracts solely between or properties of among the Company or its Subsidiariesand/or any Company Subsidiary;
(iivi) any each Contract under which the Company or its Subsidiaries any Company Subsidiary is lessee of the landlord, sublandlord, tenant, subtenant or holds occupant with respect to any material real property leased, subleased, licensed or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000otherwise occupied;
(iiivii) each Contract for any Contract under which Derivative Transaction;
(viii) each material partnership, joint venture or limited liability company agreement, other than any customary joint operating agreements, unit agreements or participation agreements affecting the Oil and Gas Properties of the Company or its Subsidiaries is lessor of any Company Subsidiary;
(ix) each joint development agreement, exploration agreement, participation, farmout, farm-in or permits any third party to hold program agreement or operate, in each case, any tangible property (other than real property), owned or controlled by similar Contract requiring the Company or its Subsidiaries, except for any lease or agreement under which Subsidiary to make expenditures that would reasonably be expected to be in excess of $250,000 in the aggregate annual rental payments do not exceed $200,000during the twelve (12) month period following the date of this Agreement, other than customary joint operating agreements and continuous development obligations under leases relating to any of the Oil and Gas Properties of the Company or any Company Subsidiary;
(ivx) each Contract that provides for a “take-or-pay” clause or any similar prepayment obligation, acreage dedication, minimum volume commitments or capacity reservation fees to a gathering transportation or other arrangement downstream of the wellhead, that cover, guaranty or commit volumes of Hydrocarbons of the Company or any Company Subsidiary;
(Axi) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, Contract that would or would reasonably be expected to require (based on any occurrenceprevent, development, activity materially delay or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of materially impede the consummation of the transactions contemplated by this AgreementAgreement or that, termination upon the consummation of employment the Merger, would (either alone or bothupon the occurrence of any additional acts or events, including the passage of time) result in any payment or benefit (whether of severance pay or otherwise) becoming due, or the acceleration or vesting of any right to any payment or benefits, from Parent, Merger Sub, the Company or any of their respective Subsidiaries to any officer, director, consultant or employee of any of the foregoing; and
(xviixii) any other each Contract the performance of which requires either (A) annual payments to with or from binding upon the Company or its Subsidiaries in excess any Company Subsidiary or any of $300,000 their respective properties or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life assets that is of the agreement and, type that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act. Each such Contract described in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
clauses (i) Each Material Contract through (xii) above is valid referred to herein as a “Company Specified Contract.”
(b) As of the date of this Agreement, each of the Company Specified Contracts is valid, binding and binding enforceable on the Company or its the Company Subsidiaries, as applicablethe case may be, and, to the Knowledge of the Company’s Knowledge, the counterparties each other party thereto, and is in full force and effect (i) except for such failures to be valid, binding or enforceable or to be in full force and enforceable effect as would not reasonably be expected to, individually or in accordance with its terms against the aggregate, have a Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto Material Adverse Effect and (subject to applicable ii) except insofar as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other Laws of general applicability relating to or affecting generally the enforcement of creditors’ rights and subject to general rights, or by principles governing the availability of equitable remedies, whether considered in a Proceeding at law or in equity). As of the date of this Agreement, (ii) there is no default under any Company Specified Contract by the Company or its the Company Subsidiaries andor, to the Knowledge of the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract other party thereto, and (iii) no event has occurred that (with or without due notice or lapse of time time, or both) would result in constitute a material breach of, or default under, any Material Contract thereunder by the Company or its Subsidiaries any Company Subsidiary or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as Knowledge of the date hereof (Company, any other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and thatparty thereto, in each casecase except as would not reasonably be expected to, do not contain any material executory individually or continuing termsin the aggregate, conditions, obligations or rights)have a Company Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Sandridge Energy Inc), Merger Agreement (Bonanza Creek Energy, Inc.)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as of the date of Except for this Agreement, the Company Benefit Plans and agreements filed as exhibits to the Company SEC Documents or to any forms, reports or documents filed with the SEC subsequent to the date hereof, neither the Company nor any of its Subsidiaries is a party to or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):bound by:
(i) any Contract relating coal supply agreement, coal transportation agreement, power sale, power purchase or offtake agreement or other fuel purchase, sale or transportation agreement that (A) is subject to Indebtedness for borrowed money profit-sharing arrangements where the amount required to be shared with a third party could reasonably be expected to exceed $100 million over the life of the transaction, (B) contains “take or pay,” “liquidated damages” or “termination, closeout or liquidation” provisions associated with a transaction with a notional amount of $500 million or more or (C) creates actual indebtedness of the Company or its Subsidiaries or results in imputed indebtedness to the placing Company as assigned by Standard & Poor’s or ▇▇▇▇▇’▇ in an amount greater than $100 million (using customary discounting); provided, for the purposes of this Section 4.21(a)(i), any imputed indebtedness amount associated with a Lien (other than a Permitted Lien) on any material assets or properties of physical power transaction entered into by the Company or any of its SubsidiariesSubsidiaries (the “Company Power Purchaser”) shall be net of expected independent system operator (“ISO”) revenues related to the capacity rights and other related energy products assigned to the Company Power Purchaser in such transaction for the years in which such capacity or other related energy products have been sold prior to the execution of such transaction in a forward ISO capacity auction; provided, however, such netting only shall occur with respect to a power transaction if the transaction (i) specifies the generation unit which will be the source of the power, capacity and other related energy products delivered to the Company Power Purchaser and (ii) assigns the rights to the ISO revenues for such capacity or other related energy products in such years to the Company Power Purchaser;
(ii) any Contract under which imposing any material restriction on the right or ability of the Company or any of its Subsidiaries is lessee of or holds or operates, in each case, any tangible property to (other than real property), owned by A) compete with any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits acquire or purports to limit, in any material respect, the freedom dispose of the Company securities of another Person or its Subsidiaries to (C) engage or compete in any line of business or with any Person or in any geographic area or that would so limit contains restrictions on pricing or purport exclusivity or non-solicitation provisions with respect to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;customers; or
(viiii) any Contract requiring any future capital commitment with an aggregate principal amount, or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in providing for an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiaryaggregate obligation, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person 50 million (A) pursuant to which the Company or its Subsidiaries (or Parent or evidencing any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) credit facility of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to guaranteeing obligations for borrowed money or from the Company or its Subsidiaries in excess other obligations of $1,500,000 over the life a third party other than any Subsidiary. All Contracts of the agreement andtypes referred to in clauses (i), (ii) and (iii) in each case, this Section 4.21(a) and any Contract that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material a material Contract is valid and binding on the Company or its Subsidiaries, required to be filed as applicable, an exhibit to the Company’s KnowledgeAnnual Report on Form 10-K pursuant to Item 601(b)(10) of Regulation S-K of the SEC are referred to herein as “Company Material Contracts.”
(b) 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, individually or in the counterparties aggregate, have a material impact on the Company. 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, individually or in the aggregate, have a material impact on the Company. Except as would not reasonably be expected to, individually or in the aggregate, have a material impact on the Company, each Company Material Contract is a valid and binding obligation of the Company 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 in accordance with its terms against the Company or its Subsidiaries andeffect, to the Company’s Knowledge, the counterparties thereto except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of similar Laws, now or hereafter in effect, relating to creditors’ rights generally and subject to general principles of equity), (ii) the Company or its Subsidiaries and, equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as discretion of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain court before which any material executory or continuing terms, conditions, obligations or rights)proceeding therefor may be brought.
Appears in 2 contracts
Sources: Merger Agreement (Constellation Energy Group Inc), Merger Agreement (Exelon Corp)
Material Contracts. (aExcept for those entered into in accordance with Sections 6.1 and 6.2, Schedule 4.2(i) Section 3.13(a) sets forth a list of the Company Disclosure following contracts or agreements, whether written or oral (each contract or agreement that is listed on Schedule contains 4.2(i), a listing of all Contracts described in clauses (i) through (xiii) below to which, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material ContractsContract”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) that commit an Acquired Company to aggregate expenditures of more than $3,000,000 during the current or any Contract relating to Indebtedness for borrowed money subsequent calendar year, excluding (A) any Lease creating the applicable Acquired Company’s Hydrocarbon Interests and any contracts or agreements creating interests or rights in any of the Company or its Subsidiaries or Hydrocarbon Interests, (B) joint operating agreements applicable to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company Hydrocarbon Interests and (C) unitization or its Subsidiariespooling agreements applicable to any of the Hydrocarbon Interests;
(ii) that can reasonably be expected to result in aggregate revenues to any Contract under which Acquired Company of more than $10,000,000 during the current or any subsequent calendar year (based solely on the terms thereof and current volumes, without regard to any expected increase in volumes or revenues), excluding any such contract or agreement creating the applicable Acquired Company’s Hydrocarbon Interests and any contracts or agreements creating any other rights in the Hydrocarbon Interests;
(iii) that commit an Acquired Company to gather, sell, treat, process, store or its Subsidiaries transport (A) any Hydrocarbon production attributable to the Hydrocarbon Interests or (B) any Hydrocarbon production that is lessee (1) owned or controlled by a third Person, (2) not produced from a well included in any of the Hydrocarbon Interests and (3) delivered by such third Person to any Facilities located on (or holds otherwise used with respect to) any of the Hydrocarbon Interests, excluding (x) any such contract or operatesagreement that expires within ninety (90) days, or can be terminated by an Acquired Company upon ninety (90) days’ or less notice without penalty, (y) any Lease creating rights in any of the Hydrocarbon Interests and (z) any contract or agreement affecting the Hydrocarbon Interests with less than 400 boepd of Hydrocarbon production;
(iv) that constitute (A) a joint operating agreement, unit operating agreement, unitization or pooling agreement, participation agreement, farm-in or farm-out agreement, exploration agreement, development agreement or similar agreement with respect to any of the Subject Interests or (B) the Superior Turnkey Agreement;
(v) that provide for (A) an area of mutual interest with respect to the Subject Interests, (B) any “tag along” or “drag along” (or other similar) rights that allow a third party, or require any Acquired Company, to participate in any future transactions, in each case, with respect to the Subject Interests or (C) any tangible property requirement (other than real property)provided in any contract or agreement, owned the primary subject matter of which is confidentiality, non-disclosure and/or non-use) by any other Acquired Company to offer (to a third Person) any property that is acquired (after the Closing Date) by such Acquired Company, except for provided, however, in the case of clause (C) with respect to any lease Acquired Company that owns Offshore Legacy Assets, only to the extent set forth in any contract or agreement under which the aggregate annual rental payments do not exceed $500,000entered into on or after April 17, 2012;
(iiivi) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible that constitute a lease for real property (other but not, for the avoidance of doubt, a Lease creating any Hydrocarbon Interests) or office space where any Acquired Company is the lessor or lessee thereunder, which lease (A) cannot be terminated by Seller without penalty upon sixty (60) days’ or less notice and (B) involves an annual base rental of more than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,0001,000,000;
(ivvii) that in any way purport to restrict the right or freedom of any Acquired Company (with respect to the Subject Interests) to (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, engage in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, business activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or its Subsidiaries to engage or compete in any line of business or compete with any Person or in any area or that would so limit or purport to limitPerson, in any material respectprovided, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiaryhowever, in each case of clauses (A) and (B), with respect to any Acquired Company that owns Offshore Legacy Assets, only to the extent set forth in excess of $200,000;any contract or agreement entered into on or after April 17, 2012; and
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed that relate to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition Indebtedness of any portion of the assets or business of the Acquired Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions any Indebtedness that is owed by one Acquired Company to one or dispositions made in more of the Ordinary Course of Business), other Acquired Companies and other Indebtedness that will be discharged on or under which the Company or its Subsidiaries has any continuing obligation with respect prior to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).
Appears in 2 contracts
Sources: Equity Purchase Agreement, Equity Purchase Agreement (Sandridge Energy Inc)
Material Contracts. (a) Section 3.13(a3.10(a) of the Company Disclosure Schedule contains Letter lists each of the following written contracts (the “Contracts”), to which the Company or its Subsidiary is a listing of all Contracts described in clauses party or is otherwise bound:
(i) through each contract that involves payment by or to the Company or any of its Subsidiaries of more than $250,000 per year and has continuing material obligations, rights or interests (xiiiother than (i) below a contract under which the sole continuing obligation is to whichmaintain confidentiality and (ii) contracts relating to the Company’s distribution segment, which do not need to be listed on Section 3.10(a) of the Company Disclosure Letter, unless such contracts involve payments of more than $750,000 per year);
(ii) each contract 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, clinical trial, supply, manufacture, marketing or co—promotion of, or collaboration with respect to, any product or product candidate for which the Company or any of its Subsidiaries has an interest, and that involve the payment by the Company or any of its Subsidiaries of more than $250,000 per year;
(iii) each material license pertaining to Company Intellectual Property Rights pursuant to which the Company, its Subsidiary or any other party thereto has material continuing obligations, rights or interests;
(iv) each contract pursuant to which the Company, its Subsidiary or any other party hereto has material continuing obligations, rights or interests involving the payment of royalties or other amounts of more than $250,000 per year calculated based upon the revenues or income of the Company or its Subsidiary or income or revenues related to any product of the Company or its Subsidiary;
(v) all consulting contracts involving consideration in excess of $250,000 per year with consultants to the Company or any of its Subsidiaries;
(vi) all contracts evidencing indebtedness for borrowed money (other than guarantees) in excess of $250,000;
(vii) all leases involving Leased Real Property;
(viii) all contracts with any Governmental Entity that involve the payment by the Company or any of its Subsidiaries of more than $250,000 per year;
(ix) all contracts that limit or purport to limit the ability of the Company or its Subsidiary to compete with any Person or product;
(x) all “material contracts” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC); and
(xii) all other contracts, the absence of which would reasonably be expected to prevent or materially delay consummation of the transactions contemplated by this Agreement or otherwise prevent or materially delay the Company from performing its obligations under this Agreement.
(b) All the contracts that are required to be described in the Company SEC Reports or required to be filed as exhibits thereto have been described or filed as required.
(c) As of the date of this Agreement, each of the Company or its Subsidiaries Contracts is a party or by which they are bound, other than a Company Benefit Plan, valid and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) binding obligation of the Company Disclosure Schedule, (or the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) Subsidiaries of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments party thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledgeknowledge, the counterparties other parties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or and its Subsidiaries and, to the Company’s Knowledgeknowledge, the counterparties other parties thereto (subject to applicable in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, moratorium, reorganization, moratorium arrangement or other similar Laws affecting generally the enforcement of creditors’ rights generally and subject to by general principles of equity), .
(iid) Except as set forth on Section 3.10(d) of the Company or Disclosure Letter, neither the Company nor any of its Subsidiaries andis, nor to the Company’s Knowledgeknowledge is any other party, the counterparties thereto are not in material breach ofbreach, default or default under, any Material Contract violation (and (iii) no event has occurred that (with or without due notice not occurred through the Company’s or lapse any of time its Subsidiaries’ action or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries inaction or, to the Company’s Knowledgeknowledge, through the counterparties thereto. The action or inaction of any third party, that with notice or the lapse of time or both would constitute a breach, default or violation) of any term, condition or provision of any Contract to which the Company has made available to Parent true and complete copies or any of all its Subsidiaries is now a party, or by which any of them or any of their respective properties or assets may be bound, except for breaches, defaults or violations that would not have, either individually or in the aggregate, a Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Andrx Corp /De/), Merger Agreement (Watson Pharmaceuticals Inc)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as of the date of Except for this Agreement, the Company Parent Benefit Plans and agreements filed as exhibits to the Parent SEC Documents or to any forms, reports or documents filed with the SEC subsequent to the date hereof, neither Parent nor any of its Subsidiaries is a party to or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):bound by:
(i) any Contract relating coal supply agreement, coal transportation agreement, power sale, power purchase or offtake agreement or other fuel purchase, sale or transportation agreement that (A) is subject to Indebtedness for borrowed money profit-sharing arrangements where the amount required to be shared with a third party could reasonably be expected to exceed $400 million over the life of the Company transaction, (B) contains “take or pay,” “liquidated damages” or “termination, closeout or liquidation” provisions associated with a transaction with a notional amount of $2 billion or more or (C) creates actual indebtedness of Parent or results in imputed indebtedness to Parent as assigned by Standard & Poor’s or ▇▇▇▇▇’▇ in an amount greater than $400 million (using customary discounting); provided, for the purposes of this Section 5.20(a)(i), any imputed indebtedness amount associated with a physical power transaction entered into by Parent or any of its Subsidiaries or (the “Parent Power Purchaser”) shall be net of expected ISO revenues related to the placing capacity rights and other related energy products assigned to the Parent Power Purchaser in such transaction for the years in which such capacity or other related energy products have been sold prior to the execution of such transaction in a Lien forward ISO capacity auction; provided, however, such netting only shall occur with respect to a power transaction if the transaction (other than a Permitted Lieni) on any material assets or properties specifies the generation unit which will be the source of the Company power, capacity and other related energy products delivered to the Parent Power Purchaser and (ii) assigns the rights to the ISO revenues for such capacity or its Subsidiariesother related energy products in such years to the Parent Power Purchaser;
(ii) any Contract under which imposing any material restriction on the Company right or ability of Parent or any of its Subsidiaries is lessee of or holds or operates, in each case, any tangible property to (other than real property), owned by A) compete with any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits acquire or purports to limit, in any material respect, the freedom dispose of the Company securities of another Person or its Subsidiaries to (C) engage or compete in any line of business or with any Person or in any geographic area or that would so limit contains restrictions on pricing or purport exclusivity or non-solicitation provisions with respect to limitcustomers; or
(iii) any Contract with an aggregate principal amount, or providing for an aggregate obligation, in excess of $200 million (A) evidencing any material respect, the operations credit facility of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life guaranteeing obligations for borrowed money or other obligations of a third party other than any Subsidiary. All Contracts of the agreement;types referred to in clauses (i), (ii) and (iii) in this Section 5.20(a) and any Contract that is a material Contract required to be filed as an exhibit to Parent’s Annual Report on Form 10-K pursuant to Item 601(b)(10) of Regulation S-K of the SEC are referred to herein as “Parent Material Contracts.”
(viib) Neither Parent nor any Contract requiring Subsidiary of Parent is in breach of or default under the Company or its Subsidiaries to guarantee the Liabilities terms of any Person (other than the Company Parent Material Contract where such breach or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business ordefault would reasonably be expected to, individually or in the aggregate, in an amount in excess have a material impact on Parent. To the Knowledge of $200,000 or made any capital contribution toParent, or no other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants party to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is in breach of or default under the terms of any Parent Material Contract where such breach or default would reasonably be expected to, individually or in the aggregate, have a material impact on Parent. Except as would not reasonably be expected to, individually or in the aggregate, have a material impact on Parent, each Parent Material Contract is a valid and binding on obligation of Parent or the Company or its Subsidiaries, as applicableSubsidiary of Parent which is party thereto and, to the Company’s KnowledgeKnowledge of Parent, the counterparties of each other party thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries andeffect, to the Company’s Knowledge, the counterparties thereto except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of similar Laws, now or hereafter in effect, relating to creditors’ rights generally and subject to general principles of equity), (ii) the Company or its Subsidiaries and, equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as discretion of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain court before which any material executory or continuing terms, conditions, obligations or rights)proceeding therefor may be brought.
Appears in 2 contracts
Sources: Merger Agreement (Constellation Energy Group Inc), Merger Agreement (Exelon Corp)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as As of the date hereof, neither Utah nor any of this Agreement, the Company or its Subsidiaries is a party are parties to or otherwise bound by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any subject to (Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedulefollowing types, together with the Utah Licenses, the “Utah Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of such Contract solely between the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each caseUtah Entities, any tangible property (other than real property)partnership, owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharingstrategic alliance, partnership, collaboration, co-promotion, commercialization license or research or and development Contract, or similar project Contract, in each case, which requiresis material to Utah and its Subsidiaries (taken as a whole);
(ii) Contracts containing (A) a covenant materially restricting the ability of Utah or any of its Subsidiaries to engage in any line of business in any geographic area or to compete with any Person, to market any product or to solicit customers or (B) a provision granting the other party exclusivity or similar rights, in each case of clauses (A) and (B), that would, after giving effect to the Combination, materially impact the businesses of Utah and its Subsidiaries (taken as a whole);
(iii) any acquisition or divestiture Contract or licensing agreement that contains continuing financial covenants, indemnities or other payment obligations (including “earn-out” or other contingent payment obligations but not including royalty payments) that would reasonably be expected to require (based on result in the receipt or making by Utah or any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or of its Subsidiaries of future payments in excess of $1,000,000 over the life 100 million;
(iv) each Contract relating to outstanding Indebtedness of the Contract Utah or its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in each case in a principal amount in excess of $100 million other than (A) Contracts solely among Utah and any wholly owned Utah Subsidiary or a guarantee by Utah or any Utah Subsidiary of Indebtedness of a Utah Subsidiary and (B) other Contract financial guarantees entered into in the ordinary course of business consistent with respect to material Company Licensed Intellectual Property past practice not exceeding $100 million, individually or in the aggregate (other than any Non-Scheduled Contractssurety 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);
(v) any Contract that (AUtah Leases set forth on Section 7.18(b) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the ClosingUtah Disclosure Schedule;
(vi) any Contract requiring shareholders, investors’ rights, registration rights or similar agreement or arrangement of Utah or any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreementSubsidiaries;
(vii) any Contract requiring that relates to any swap, forward, futures, or other similar derivative transaction with a notional value as of the Company or its Subsidiaries to guarantee the Liabilities date of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case this Agreement in excess of $200,000100 million;
(viii) any Contract under involving the settlement of any claims, actions, suits or proceedings or threatened claims, actions, suits or proceedings (or series of related claims, actions, suits or proceedings) pursuant to which the Company Utah or any of its Subsidiaries has, directly or indirectly, made or agreed (A) is required to make any loan, advance, or assignment of payment to any Person outside of pay after the Ordinary Course of Business or, individually or in the aggregate, in an amount date hereof consideration in excess of $200,000 50 million or made (B) is subject to material monitoring or reporting obligations to any capital contribution to, or other investment in, any PersonPerson outside the ordinary course of business;
(ix) any Contract required with any Governmental Authority that is material to be disclosed on Section 3.19 Utah and its Subsidiaries, taken as a whole, excluding any sales, supply, manufacturing or services agreements entered into in the ordinary course of the Company Disclosure Schedule;business and tolling agreements entered into in connection with investigations by any Governmental Authority; and
(x) any Contract with not otherwise described in any Person (Aother subsection of this Section 7.11(a) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may that would be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or be filed by Utah as a “material contract” (Bas such term is defined in Item 601(b)(10) under which of Regulation S-K of the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;SEC).
(xib) any Utah has made available to Pluto true, complete and correct copies of each Utah Material Contract for described in Section 7.11(a)(i) through Section 7.11(a)(x) in effect on the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar date hereof. Each Utah Material Contract (A) requiring monetary payments by the Company except those which may be canceled, rescinded, terminated or its Subsidiaries not renewed after the date of this Agreement, (Bhereof in accordance with their terms) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company Utah or its Subsidiaries, as applicable, and, to the Company’s Knowledgeknowledge of Utah, the counterparties counterparty thereto, and is in full force and effect and enforceable in accordance with its terms against effect, subject to the Company or Remedies Exception. Neither Utah nor any of its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not is in material breach of, or default under, any Utah Material Contract and (iii) no event has occurred that (with to which it is a party, except for such breaches or without due notice defaults as would not reasonably be expected to have, individually or lapse in the aggregate, a Utah Material Adverse Effect. To the knowledge of time or both) would result in a material breach ofUtah, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (hereof, no other than purchase ordersparty to any Utah Material Contract is in breach of or default under the terms of any Utah Material Contract where such breach or default has had or would reasonably be expected to have, invoicesindividually or in the aggregate, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Utah Material Adverse Effect.
Appears in 2 contracts
Sources: Business Combination Agreement (Pfizer Inc), Business Combination Agreement (Mylan N.V.)
Material Contracts. (a) Section 3.13(a) Schedule 4.25 delivered to AMCON by HNWC prior to the execution of the Company Disclosure Schedule contains a listing of this Agreement lists all Contracts described in clauses (i) through (xiii) below material contracts and agreements to which, as of the date of this Agreementhereof, the Company or its Subsidiaries HNWC is a party or by which they are boundis bound or under which HNWC has or may acquire any rights, which involve or relate to (i) obligations of HNWC for borrowed money or other indebtedness where the amount of such obligations exceeds $50,000 individually, (ii) the lease by HNWC, as lessee or lessor, of real property for rent of more than $25,000 per annum, (iii) the purchase or sale of goods (other than a Company Benefit Plan, and raw material to be purchased by HNWC on terms that are customary and consistent with the past practice of HNWC and in amounts and at prices substantially consistent with past practices of HNWC) or services with an aggregate minimum purchase price of more than $25,000 per annum, (iv) rights to manufacture and/or distribute any product which accounted for more than $25,000 of the consolidated revenues of HNWC during the fiscal year ended December 31, 1999 or under which HNWC received or paid license or other fees in excess of $25,000 during any year, (v) the purchase or sale of assets or properties not expired in the ordinary course of business having a purchase price in excess of $25,000, (vi) the right (whether or have not been terminated and not currently exercisable) to use, license (including any Contracts pursuant to which the Company has with no material outstanding "in-license" or executory obligations "outlicense"), sublicense or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) otherwise exploit any intellectual property right or other proprietary asset of the Company Disclosure ScheduleHNWC or any other Person which, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, when considered together with all amendments thereto):
such other rights, is material to HNWC; (ivii) any Contract relating material collaboration or joint venture or similar arrangement; (viii) the restriction on the right or ability of HNWC (A) to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by compete with any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) to acquire any product or other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent asset or any of its Affiliates after the Closingservices from any other Person, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting to solicit, hire or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of retain any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiaryas an employee, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xviD) to develop, sell, supply, distribute, offer, support or service any product or any technology or other asset to or for any other Person, (E) to perform services for any other Person, or (F) to transact business or deal in any other manner with any other Person; (ix) any employment currency hedging; (x) individual capital expenditures or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries commitments in excess of $300,000 25,000; or (Bxi) aggregate payments any license, lease or other right to or from the Company or use any water used by HNWC in its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable bottling operations. All such contracts and agreements are duly and validly executed by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid HNWC and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is are in full force and effect and enforceable in accordance with its terms against the Company all material respects. HNWC has not violated or its Subsidiaries breached, or committed any default under, any contract or agreement, and, to the Company’s Knowledgeknowledge of HNWC, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium no other Person has violated or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach ofbreached, or committed any default under, any contract or agreement, which violation, breach or default (alone or in combination with other violations, breaches or defaults under such contract or agreement or under other contracts or agreements) has had or may reasonably be expected to have a HNWC Material Contract and (iii) no Adverse Effect. No event has occurred that (with or without due which, after notice or lapse the passage of time or both, would constitute a default by HNWC under any contract or agreement or give any Person the right to (A) would result declare a default or exercise any remedy under any contract or agreement, (B) receive or require a rebate, chargeback, penalty or change in a material breach ofdelivery schedule under any contract or agreement, (C) accelerate the maturity or performance of any contract or agreement, or default under(D) cancel, terminate or modify any Material Contract by the Company contract or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and thatagreement, in each casecase which, do not contain any together with all other events of the types referred to in clauses (A), (B), (C) and (D) of this sentence has had or may reasonably be expected to have a HNWC Material Adverse Effect. All such contracts and agreements will continue, after the Effective Time, to be binding in all material executory or continuing terms, conditions, obligations or rights)respects in accordance with their respective terms until their respective expiration dates.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Hawaiian Natural Water Co Inc), Merger Agreement (Amcon Distributing Co)
Material Contracts. (a) Section 3.13(a) Schedule 4.25 delivered to AMCON by HNWC prior to the execution of the Company Disclosure Schedule contains a listing of this Agreement lists all Contracts described in clauses (i) through (xiii) below material contracts and agreements and use permits to which, as of the date of this Agreementhereof, the Company or its Subsidiaries HNWC is a party or by which they are boundis bound or under which HNWC has or may acquire any rights, which involve or relate to (i) obligations of HNWC for borrowed money or other indebtedness where the amount of such obligations exceeds $50,000 individually, (ii) the lease by HNWC, as lessee or lessor, of real property for rent of more than $25,000 per annum, (iii) the purchase or sale of goods (other than a Company Benefit Plan, and raw material to be purchased by HNWC on terms that are customary and consistent with the past practice of HNWC and in amounts and at prices substantially consistent with past practices of HNWC) or services with an aggregate minimum purchase price of more than $25,000 per annum, (iv) rights to manufacture and/or distribute any product which accounted for more than $25,000 of the consolidated revenues of HNWC during the fiscal year ended December 31, 1999 or under which HNWC received or paid license or other fees in excess of $25,000 during any year, (v) the purchase or sale of assets or properties not expired in the ordinary course of business having a purchase price in excess of $25,000, (vi) the right (whether or have not been terminated and not currently exercisable) to use, license (including any Contracts pursuant to which the Company has with no material outstanding "in-license" or executory obligations "outlicense"), sublicense or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) otherwise exploit any intellectual property right or other proprietary asset of the Company Disclosure ScheduleHNWC or any other Person which, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, when considered together with all amendments thereto):
such other rights, is material to HNWC; (ivii) any Contract relating material collaboration or joint venture or similar arrangement; (viii) the restriction on the right or ability of HNWC (A) to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by compete with any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) to acquire any product or other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent asset or any of its Affiliates after the Closingservices from any other Person, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting to solicit, hire or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of retain any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiaryas an employee, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xviD) to develop, sell, supply, distribute, offer, support or service any product or any technology or other asset to or for any other Person, (E) to perform services for any other Person, or (F) to transact business or deal in any other manner with any other Person; (ix) any employment currency hedging; (x) individual capital expenditures or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries commitments in excess of $300,000 25,000; or (Bxi) aggregate payments any license, lease, permit or other right to or from use any water used by HNWC in its bottling operations. All such contracts and agreements and permits are duly and validly executed by HNWC, the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid other party thereto and binding on the Company or its Subsidiariesall Governmental Entities, as applicable, to the Company’s Knowledge, the counterparties theretocase may be, and is are in full force and effect and enforceable in accordance with its terms against the Company all material respects. HNWC has not violated or its Subsidiaries breached, or committed any default under, any contract or agreement or permit, and, to the Company’s Knowledgeknowledge of HNWC, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium neither HNWC or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company Person has violated or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach ofbreached, or committed any default under, any contract or agreement or permit, which violation, breach or default (alone or in combination with other violations, breaches or defaults under such contract or agreement or permit or under other contracts or agreements or permits) has had or may reasonably be expected to have a HNWC Material Contract and (iii) no Adverse Effect. No event has occurred that (with or without due which, after notice or lapse the passage of time or both, would constitute a default by HNWC under any contract or agreement or permit or give any Person the right to (A) would result declare a default or exercise any remedy under any contract or agreement or permit, (B) receive or require a rebate, chargeback, penalty or change in a material breach ofdelivery schedule under any contract or agreement or permit, (C) accelerate the maturity or performance of any contract or agreement or permit, or default under(D) cancel, terminate or modify any Material Contract by the Company contract or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory agreement or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and thatpermit, in each casecase which, do not contain any together with all other events of the types referred to in clauses (A), (B), (C) and (D) of this sentence has had or may reasonably be expected to have a HNWC Material Adverse Effect. All such contracts and agreements and permits will continue, after the Effective Time, to be binding in all material executory or continuing terms, conditions, obligations or rights)respects in accordance with their respective terms until their respective expiration dates.
Appears in 2 contracts
Sources: Merger Agreement (Amcon Distributing Co), Merger Agreement (Hawaiian Natural Water Co Inc)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, Except as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on in Section 3.13(a4.22(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies as of the Contracts listed on Section 3.13(a) of date hereof, neither the Company Disclosure Schedule have previously been made available nor any of its Subsidiaries is party to Parent or its agents or representatives, together with all amendments thereto):bound by any Contract:
(i) that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the 1933 Act;
(ii) that is an employment, independent contractor, consulting, severance or similar agreement with any Contract relating individual (or such individual’s alter ego entity) under which the Company or any of its Subsidiaries is or could become obligated to Indebtedness for borrowed money provide a base salary or annual base consulting fees in excess of $750,000;
(iii) that (or, together with additional related Contracts with the same Person or its Affiliates) (A) requires the payment or receipt of amounts by the Company or any of its Subsidiaries of more than $250,000,000 in the calendar year ended December 31, 2022 or reasonably expected in any subsequent calendar year, in each case other than Oil and Gas Leases and spot sales of Hydrocarbons on market terms in the ordinary course, or (B) is material to the Company and its Subsidiaries, taken as a whole, and, in the case of clause (B), cannot be cancelled at any time by the Company or its applicable Subsidiary without penalty or further payment on no more than ninety (90) days’ notice;
(iv) that is a material partnership, strategic alliance or joint venture agreement, other than customary joint operating agreements, unit agreements or participation agreements affecting the Oil and Gas Properties of the Company or its Subsidiaries or to the placing any of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(iiv) any that provides for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets (including properties) or capital stock (other than acquisitions or dispositions of Hydrocarbons or inventory and raw materials and supplies in the ordinary course of business) (A) that is pending for aggregate consideration under such Contract under in excess of $50,000,000 or (B) pursuant to which the Company or its Subsidiaries is lessee has continuing material obligations including “earn-out” or other contingent payment obligations;
(vi) providing for material indemnification by the Company or any its Subsidiaries, other than indemnification obligations in (A) customary joint operating agreements in the ordinary course of business, and (B) commercial agreements in the ordinary course of business;
(vii) that contains any “most favored nation” or holds most favored customer provision with respect to any material obligation or operatesany material preferential right or material rights of first or last offer, negotiation or refusal, in each case, any tangible property (other than real property)such provisions in favor of the Company or any of its Subsidiaries or pursuant to customary royalty pricing provisions in Oil and Gas Leases or customary preferential rights in joint operating agreements, owned by unit agreements or participation agreements affecting the Oil and Gas Properties of the Company or any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000of its Subsidiaries;
(iiiviii) any Contract under other than the Convertible Notes, that contains a put, call or similar right pursuant to which the Company or any of its Subsidiaries is lessor could be required to purchase or sell, as applicable, any assets or any equity interests of or permits any third party to hold or operatePerson (excluding, in each caserespect of the foregoing, any tangible property (other than real property), owned or controlled by agreements between the Company or and its wholly-owned Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(vix) any Contract that (A) limits materially restricts or purports to limit, in any material respect, materially restrict the freedom ability of the Company or any of its Subsidiaries Affiliates to engage compete with, or compete to provide services in any line of business or with any Person or in any geographic area or market segment, in each case that would so limit be applicable to the Surviving Corporation or purport to limit, in any material respect, the operations of its Subsidiaries or Parent or any of its Affiliates after Subsidiaries following the ClosingEffective Time;
(x) that is a Collective Bargaining Agreement;
(xi) containing 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 that is material to the Company and its Subsidiaries, taken as a whole;
(Bxii) contains (A) with (1) any exclusivitybeneficial owner (as defined in Rule 13d-3 under the 1934 Act) of 5% or more of any class of securities of the Company or any of its Subsidiaries who has filed a Schedule 13D or Schedule 13G under the 1934 Act (or, “most favored nation” or similar provisionsto the Company’s Knowledge, obligations or restrictions is required to make such a filing) or (C2) contains any other provisions restricting director or purporting to restrict the ability executive officer of the Company or its Subsidiaries to sell(other than any employment agreements, manufactureEmployee Plans or other Contracts providing exclusively for compensation, developbenefits, commercialize, test equity awards or research products, directly or indirectly through third partiescustomary indemnification), or (B) that is required to solicit be disclosed under Item 404 of Regulation S-K promulgated under the 1933 Act;
(xiii) that (A) evidences Indebtedness for borrowed money of the Company or any potential employee Subsidiary of the Company (committed or customeroutstanding) in excess of $100,000,000, other than agreements solely between or among the Company and its Subsidiaries, (B) evidences a capitalized lease obligation in each case, excess of $100,000,000 that is required to be classified as a balance sheet liability of the Company in accordance with GAAP or (C) restricts the payment of dividends or other distribution of assets by any material respect of the Company or that would so limit or purports to limit, in any material respect, Parent its Subsidiaries;
(xiv) requiring future capital expenditures by the Company or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made 250,000,000 other than any capital contribution to, or other investment in, any Person;
(ixexpenditure contemplated by Section 6.01(e) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (Bxv) under which the Company or any of its Subsidiaries (A) grants to any Person any right of first refusalright, right of first negotiation, option to purchase, option to license or any other similar rights covenant not to sue with respect to any material Company Product Intellectual Property (other than non-exclusive licenses granted to customers or vendors in the ordinary course of business) or (B) obtains any right, license or covenant not to be sued with respect to any material Intellectual Property;
(xi) Property owned by any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person third party (other than acquisitions or dispositions made in the Ordinary Course of Business), or under licenses for commercial off-the-shelf software which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, are generally available on non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closingdiscriminatory pricing terms); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) that is the subject of any employment or consulting Contract with severance, change in control, retention or similar arrangements, Action individually that will is reasonably expected to result in any obligation payments by the Company in excess of $25,000,000 and under which there are outstanding obligations (absolute or contingentincluding settlement agreements) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or bothSubsidiaries; andor
(xvii) any other Contract the performance of which requires either binding commitment (Aorally or in writing) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or any of its Subsidiaries or, to enter into any of the Company’s Knowledge, the counterparties thereto. foregoing.
(b) The Company has made available to Parent a true and complete copies copy of all Material Contracts each Contract listed or required to be listed in Section 4.22(a) of the Company Disclosure Schedule (such Contracts, together with any Contract to which the Company or any of its Subsidiaries becomes a party or by which it becomes bound after the date hereof that would be required to be listed in Section 4.22(a) of the Company Disclosure Schedule if in effect as of the date hereof hereof, the “Material Contracts” and each, a “Material Contract”). Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (other than purchase ordersi) each of the Material Contracts is valid, invoicesbinding obligation of the Company, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between Knowledge of the parties to a particular Contract or group of Contracts Company, each other party thereto, and thatin full force and effect, in each casecase subject to bankruptcy, do not contain insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles (whether considered in a proceeding in equity or at law), and (ii) since the Applicable Date, neither the Company nor any material executory of its Subsidiaries, nor to the Knowledge of the Company any other party to a Material Contract, has breached or continuing termsviolated any provision of, conditionsor taken or failed to take any act which, obligations with or rights)without notice, lapse of time, or both, would constitute a breach or default under the provisions of such Material Contract, and neither the Company nor any of its Subsidiaries has received notice that it has breached, violated or defaulted under any Material Contract, except for breaches, violations or defaults that have been cured.
Appears in 2 contracts
Sources: Merger Agreement (Pioneer Natural Resources Co), Merger Agreement (Pioneer Natural Resources Co)
Material Contracts. (a) Section 3.13(a) Schedule 4.19 of the Company Disclosure Schedule contains Letter, together with the lists of exhibits contained in the Company SEC Documents, sets forth a listing of all Contracts described in clauses (i) through (xiii) below to whichtrue and complete list, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):of:
(i) any Contract relating to Indebtedness for borrowed money each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its SubsidiariesExchange Act);
(ii) any Contract under 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 or reasonably expects that the Company and its Subsidiaries is lessee will make annual payments in excess of $15,000,000 or holds or operates, aggregate payments in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed excess of $500,00050,000,000;
(iii) any Contract under which each contract that constitutes a commitment relating to Indebtedness or the Company or its Subsidiaries is lessor deferred purchase price of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $20,000,000, other than agreements solely between or among the Company and its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any acquisition or divestiture contract that contains “earn -out” or other similar contingent payment obligations (A) joint ventureother than asset retirement obligations, profit-sharingplugging and abandonment obligations and other reserves of the Company set forth in the Company Reserve Report), partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or that would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate result in annual payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)20,000,000;
(v) any Contract that (A) limits or purports contract pursuant to limit, in any material respect, the freedom of which the Company or 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 operations of Parent or any of its Affiliates after Subsidiaries has paid amounts associated with any Production Burden in excess of $20,000,000 during the Closing, (B) contains immediately preceding fiscal year or with respect to which the Company reasonably expects that it will make payments associated with any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains Production Burden in any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sellnext three succeeding fiscal years that could, manufacturebased on current projections, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closingexceed $20,000,000 annually;
(vi) any Contract requiring any future capital commitment each contract for lease of personal property or capital expenditure real property (or series of capital expendituresother than Oil and Gas Properties) by the Company or its Subsidiaries in an amount involving payments in excess of $20,000,000 in any calendar year or aggregate payments in excess of $50,000,000 that are not terminable without penalty or other liability to the Company (Aother than any ongoing obligation pursuant to such contract that is not caused by any such termination) $300,000 annually or (B) $1,000,000 over the life of the agreementwithin 60 days, other than contracts related to drilling rigs;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or each contract that is a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, non-competition contract or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person contract that (A) pursuant purports to limit in any material respect either the type of business in which the Company or its Subsidiaries (or or, after the Effective Time, Parent or its Subsidiaries) may engage or the manner or locations in which any of its Affiliates after the Closing) is them may so engage in any business (including any contract containing any area of mutual interest, joint bidding area, joint acquisition area, or may be required to pay milestonesnon-compete or similar type of provision), royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for could require the disposition of any portion of the material assets or line of business of the Company or its Subsidiaries or for (or, after the acquisition by the Company Effective Time, Parent or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xiiSubsidiaries) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on prohibits or limits the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) rights of the Company or any of its Subsidiaries to make make, sell or distribute any payment products or incur services, or use, transfer or distribute, or enforce any Liability as a result of their rights with respect to, any of their material assets;
(viii) each contract involving the pending acquisition or sale of (or option to purchase or sell) any material amount of the consummation assets or properties of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries (including any Oil and Gas Properties), 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;
(ix) each ISDA Master Agreement for any Derivative Transaction;
(x) each material partnership, joint venture or limited liability company agreement, other than any customary joint operating agreements, unit agreements or participation agreements affecting the Oil and Gas Properties of the Company;
(xi) 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 expenditures from and after January 1, 2019 that would reasonably be expected to be in excess of $300,000 25,000,000 in the aggregate, other than customary joint operating agreements and continuous development obligations under Oil and Gas Leases;
(xii) each collective bargaining agreement to which the Company is a party or is subject;
(xiii) 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 or consultants, in each case with a principal amount in excess of $120,000;
(xiv) any contract (A) that provides for the sale by the Company or any of its Subsidiaries of Hydrocarbons or any Hydrocarbon marketing, transportation, gathering, processing, storage or similar contract that is (1) in excess of 5,000 MMcf of natural gas per day, or 1,000 barrels of oil per day, in each case over a period of one month (calculated on a yearly average basis) or (2) for a term greater than ten (10) years or (B) pursuant to which the Company reasonably expects to make aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 20,000,000 in any of the next three succeeding fiscal years or $50,000,000 over the life of the contract that, in the case of the contracts described in (A) or (B), has a remaining term of greater than 60 days and does not allow the Company or such Subsidiary to terminate it without penalty to the Company or such Subsidiary within 60 days;
(xv) each contract for any Company Related Party Transaction;
(xvi) any contract that provides for a “take-or-pay” clause or minimum volume commitment; or
(xvii) each agreement andthat 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, that case other than those contained in (A) any agreement in which such provision is not terminable by solely for the applicable benefit of 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 Oil and Gas Properties of the Company or any of its Subsidiaries, to which the Company or any of its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeor any of their respective Affiliates is subject, and is material to the business of the Company and its Subsidiaries, taken as a whole.
(ib) Each Collectively, the contracts that are required to be set forth in Section 4.19(a) are herein referred to as the “Company Contracts.” A complete and correct copy of each of the Company Contracts has been made available to Parent. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Contract is valid legal, valid, binding and binding enforceable in accordance with its terms on the Company or and each of its Subsidiaries, as applicableSubsidiaries that is a party thereto and, to the knowledge of the Company’s Knowledge, the counterparties each other party thereto, and is in full force and effect and enforceable effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in accordance with its terms against the aggregate, a Company Material Adverse Effect, neither the Company or nor any of its Subsidiaries andis in breach or default under any Company Contract nor, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement knowledge of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not is any other party to any such Company Contract in material breach of, or default underthereunder, any Material Contract and (iii) no event has occurred that (with or without due notice or the lapse of time or both) the giving of notice or both would result in constitute a material breach of, or default under, any Material Contract thereunder by the Company or its Subsidiaries Subsidiaries, or, to the knowledge of the Company’s Knowledge, the counterparties any other party thereto. The Company has made available There are no disputes pending or, to Parent true and complete copies of all Material Contracts in effect as the knowledge of the date hereof (Company, threatened with respect to any Company Contract and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other than purchase ordersparty to any Company Contract to terminate for default, invoicesconvenience or otherwise any Company Contract, and similar confirmatory or administrative documents that are ancillary nor to the main contractual relationship between knowledge of the parties Company, is any such party threatening to a particular Contract or group of Contracts and thatdo so, in each casecase except as has not had or would not reasonably be expected to have, do not contain any material executory individually or continuing termsin the aggregate, conditions, obligations or rights)a Company Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Parsley Energy, Inc.), Merger Agreement (Jagged Peak Energy Inc.)
Material Contracts. (a) Except for this Agreement, the Company Benefit Plans or as filed with the Filed SEC Reports in unredacted form with any material omitted schedules Made Available to Parent, Section 3.13(a3.12(a) of the Company Disclosure Schedule contains Letter sets forth a listing of all Contracts described in clauses true and complete list (i) through (xiii) below to whichexcluding any purchase orders or sales orders), as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities Made Available to Parent true and complete copies, of the following:
(such Contracts as are i) each Company Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) each Company Contract involving a material joint venture, strategic alliance, partnership, sharing of profits or revenue or similar Contract establishing any material research and development collaboration, except for such Contracts entered into in the ordinary course of business;
(iii) each Company Contract for any capital commitment, capital loan or capital expenditure over the remaining life of such Company Contract in excess of $3,500,000 that is not included in the Company’s capital expenditure budget set forth on in Section 3.13(a3.12(a)(iii) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000Letter;
(iv) each Company Contract entered into at any time since January 1, 2022: (A) joint venturegoverning the disposition or acquisition by any Acquired Company of any business, profit-sharingproduct line or other assets outside the ordinary course of business (whether by merger, partnershipsale or purchase of assets, collaboration, co-promotion, commercialization sale or research purchase of stock or development Contract, equity ownership interests or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries otherwise) for consideration in excess of $1,000,000 over the life of the Contract 3,000,000 or (B) other Contract with respect pursuant to material which any Acquired Company Licensed Intellectual Property will acquire any interest, or will make an investment (other than short-term investments including money market funds, bank deposits, commercial paper and other money market instruments as disclosed in the Company Balance Sheet or the notes thereto, or incurred in the ordinary course of business since the date of the Company Balance Sheet) for consideration in excess of $3,000,000 in any Non-Scheduled Contractsother Person (other than another Acquired Company);
(v) each Company Contract governing the disposition or acquisition by any Acquired Company of any material business, material product line or other material assets or equity securities (whether by merger, sale or purchase of assets, sale or purchase of stock or equity ownership interests or otherwise) with material remaining guarantee, “earn out”, or similar contingent payment or obligations on the part of any Acquired Company;
(vi) each Company Contract that by its terms (A) limits or purports to limit, in the ability of any material respect, the freedom of the Acquired Company or its Subsidiaries to engage or compete in any line of business or compete with any other Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Parent or any of its Affiliates after the Closing, geographic area; (B) grants material exclusive rights in favor of any third party, including material exclusive rights to market, sell or deliver any Company Product; (C) contains any exclusivity, material “most favored nation” or similar provisions, obligations or restrictions material provision in favor of the counterparty for a Company Product; or (CD) contains a right of first refusal, first offer or first negotiation or any other provisions restricting or purporting similar right with respect to restrict the ability of the Company or its Subsidiaries to sellany material asset owned by an Acquired Company, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customerexcept, in each case, in for any material respect or such Contract that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) may be cancelled without penalty by the Company Acquired upon notice of sixty (60) days or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreementless;
(vii) any each Company Contract requiring for the Company marketing, sale, licensing or its Subsidiaries to guarantee the Liabilities distribution of any Person Company Product under which payments in excess of $5,000,000 were made to the Acquired Companies, as a whole, in the fiscal year ended December 31, 2023, or are reasonably expected to be made to the Acquired Companies in the fiscal year ended December 31, 2024;
(other than viii) each Company Contract for the purchase, sale or lease of goods or services (including contract manufacturing), materials, supplies or equipment, under which payments in excess of $5,000,000 were made by the Acquired Companies, as a whole, in the fiscal year ended December 31, 2023, or are reasonably expected to be made by the Acquired Companies in the fiscal year ended December 31, 2024;
(ix) each Company or a Subsidiary) or Contract pursuant to which any Person an Acquired Company has continuing obligations or interests involving (other than A) milestone or similar payments, including upon the Company achievement of regulatory or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiarycommercial milestones, in each case in excess of $200,0003,000,000 of future payments in the aggregate, or (B) payment of royalties or other amounts calculated based upon any revenues or income of any Acquired Company, in each case in excess of $3,000,000 of future payments in the aggregate;
(viiix) each settlement, conciliation or similar Company Contract arising out of a Legal Proceeding or threatened Legal Proceeding: (A) that materially restricts or imposes any material obligation on any Acquired Company or materially disrupts the business of any of the Acquired Companies as currently conducted or (B) that would require any of the Acquired Companies to pay consideration valued at more than $2,500,000 in the aggregate following the date of this Agreement;
(xi) any Company Contract (A) pursuant to which an Acquired Company grants a third party a license, covenant not to sue or other similar right under any material Company IP, other than non-exclusive licenses granted to customers, distributors, resellers, or Acquired Company service providers in the ordinary course of business, (B) pursuant to which a third party grants an Acquired Company a license, covenant not to sue or other similar right under Intellectual Property Rights material to the Acquired Companies’ businesses, taken as a whole, other than non-exclusive licenses of generally commercially available Intellectual Property Rights (including for off-the-shelf software), or (C) pursuant to which any Intellectual Property Rights material to the business of the Acquired Companies, taken as a whole, have been developed on behalf of the Acquired Companies, other than by (1) employees or (2) contractors who assigned all of their right, title and interest in and to such Intellectual Property Rights to one or more of the Acquired Companies;
(xii) each Company Contract with any Governmental Entity reasonably expected to involve payments to the Company exceeding $2,500,000 during the twelve (12) months ended December 31, 2024;
(xiii) each Company Contract that is a collective bargaining agreement or other Contract with any labor union, labor or trade organization, works council or other employee representative body;
(xiv) each material stockholders’, investors rights’, registration rights or similar Contract to which the Company or its any Subsidiary of the Company is a party (other than the organizational documents of wholly owned Subsidiaries hasof the Company);
(xv) each Contract with or binding upon the Company, directly any Subsidiary of the Company or indirectlyany of their respective properties or assets that is of the type that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act;
(xvi) each hedging, made derivative or agreed similar Contract (including interest rate, currency or commodity swap agreements, cap agreements, collar agreements and any similar Contract designed to make protect a Person against fluctuations in interest rates, currency exchange rates or commodity prices);
(xvii) any loan, advance, or assignment Company Contract relating to (A) a financial guaranty of payment to any Person outside by any Acquired Company or (B) the incurrence of indebtedness of the Ordinary Course Acquired Companies for borrowed money, in each case, in excess of Business or$5,000,000 (whether outstanding or as may be incurred thereunder) (other than any such indebtedness owed to (and any financial guaranty of indebtedness by an Acquired Company in favor of) another Acquired Company); and
(xviii) the Leases. Each Contract of the type described in this Section 3.12(a) is referred to herein as a “Material Contract.”
(b) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, in an amount in excess a Company Material Adverse Effect, as of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and is valid, binding and enforceable in accordance with its terms against each Acquired Company which is a party thereto, subject to the Company Enforceability Exceptions and assuming the validity, binding nature and enforceability against the counterparty or its Subsidiaries counterparties thereto and, to the Knowledge of the Company’s Knowledge, each other party thereto. As of the counterparties thereto (subject date of this Agreement, except as has not had, and would not reasonably be expected to applicable bankruptcyhave, insolvencyindividually or in the aggregate, reorganizationa Company Material Adverse Effect, moratorium or other Laws affecting generally none of the enforcement of creditors’ rights and subject to general principles of equity)Acquired Companies, (ii) the Company or its Subsidiaries and, to the Knowledge of the Company’s Knowledge, the counterparties thereto are not in material breach ofno other Person, has violated or breached, or committed any default under, any Material Contract under (and (iii) no event has occurred that (with or without due notice or the lapse of time or both) the giving of notice or both would result in constitute a material breach of, or default under), any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Contract.
Appears in 2 contracts
Sources: Merger Agreement (Stryker Corp), Merger Agreement (Inari Medical, Inc.)
Material Contracts. (a) Section 3.13(aThe 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 Disclosure Schedule contains or the Company Subreits), as of the date hereof, that:
(i) is required to be filed by the Company as a listing “material contract” pursuant to Item 601(b)(10) of all Regulation S-K promulgated under the Securities Act;
(ii) relates to (A) Indebtedness of the Company or any of its Subsidiaries, except for Contracts relating to less than $30 million of Indebtedness in the aggregate, or (B) the sale, securitization or servicing of loans or loan portfolios of 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) by its terms calls for aggregate payment or receipt by the 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 in respect of any purchase price adjustment, earn-out or contingent purchase price obligation;
(ix) 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 Company, or (ii) provides for “exclusivity” or any similar requirements in favor of any Person, other than ordinary course of business procurement 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 any renovation, construction or development project) in excess of $5 million per annum, excluding any payment obligation budgeted for in the Company’s 2018 budget. Each Contract of the type described in clauses (i) through (xiii) below to which, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant above is referred to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability herein as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice“Specified Contract.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).”
Appears in 2 contracts
Sources: Merger Agreement (Quality Care Properties, Inc.), Merger Agreement (Welltower Inc.)
Material Contracts. (a) Section 3.13(a3.11(a) of the Company Seller Disclosure Schedule contains sets forth a listing true and complete list of all the following Contracts described in clauses (i) through (xiii) below to which, effect as of the date of this Agreement, Agreement to which either of the Company or its Subsidiaries Acquired Companies is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure ScheduleContracts, collectively, the “Material Contracts”). True; provided, correct and complete copies of however, that a Contract referenced by more than one description need only be listed once on the Contracts listed on Section 3.13(a) of the Company Seller Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):Schedule:
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiariesevidencing Indebtedness;
(ii) any Contract under pursuant to which either of the Company Acquired Companies (A) has acquired the right to use, or its Subsidiaries is lessee of any license, release, authorization or holds or operates, in each caseother immunity under, any tangible property (Intellectual Property Rights owned by a third party, other than real property)licenses for COTS Software; or (B) has granted to any third party any license to use, owned by or any license, release, authorization or other Personimmunity under, except for any lease Business Intellectual Property Rights, other than non-exclusive rights that an Acquired Company grants to customers with respect to Acquired Company Product units in connection with the distribution or agreement under which sale of such Acquired Company Product units to customers in the aggregate annual rental payments do not exceed $500,000ordinary course of business consistent with past practice;
(iii) any Contract Contracts under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life either of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, Acquired Companies made or agreed to make any loan, advance, or assignment of payment to any Person outside of received payments during the Ordinary Course of Business orprevious 12 months, individually or in the aggregate, in an amount excess of $500,000;
(iv) any agreement for capital expenditures or the acquisition or construction of fixed assets requiring payments by the Acquired Companies, individually or in the aggregate, in excess of $200,000 500,000 during the previous 12 months or made at any capital contribution totime in the future;
(v) any Contract containing a covenant not to compete or that otherwise impairs the ability of the Acquired Companies (or Buyer on behalf of the Acquired Companies) to freely conduct business in any geographic area;
(vi) any Contract that requires an Acquired Company to deal exclusively with any Person with respect to any matter or that provides “most favored nation” pricing or terms to the other party to such Contract or any third party;
(vii) any partnership, joint venture or other investment insimilar agreement or arrangement;
(viii) any agreement relating to the acquisition or disposition of any business (whether by merger, any Personsale of stock, sale of assets or otherwise);
(ix) any lease, sublease or other similar Contract required to be disclosed on Section 3.19 in respect of the Company Disclosure ScheduleReal Property;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any an Affiliate of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;an Acquired Company; and
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business)employment, or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlementcompensation, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreementseverance, (B) with a Governmental Authority or (C) that imposes any materialbonus, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement retirement or other Contract with for which the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries Acquired Companies have obligations in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries 100,000 in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeany 12-month period.
(b) Except as set forth in Section 3.11(b) of the Seller Disclosure Schedule, (i) Each each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and each Government Contract is in full force and effect and enforceable in accordance with its terms against constitutes a valid and binding obligation of the respective Acquired Company or its Subsidiaries that is party thereto and, to the Company’s KnowledgeKnowledge of Seller, the counterparties other parties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally except as such enforcement may be limited by the enforcement of creditors’ rights Enforceability Exceptions; and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s KnowledgeKnowledge of Seller, the counterparties thereto are not (A) no party to such Material Contract or Government Contract is in material breach of, or material default under, any of such Material Contract or Government Contract and (iiiB) no event has occurred that (with or without due notice or lapse of time or both) both would result in constitute a material breach of, or material default under, any thereunder by the Acquired Companies or would permit the modification or premature termination of such Material Contract or Government Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties any other party thereto. The Company Seller has made available to Parent Buyer true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory together with all amendments or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)modifications thereto.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (API Technologies Corp.)
Material Contracts. (a) Section 3.13(a) of the The Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as of the date of this Agreement, the Company or its Subsidiaries is neither a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):nor bound by:
(i) any Contract relating to Indebtedness lease (whether of real or personal property) providing for borrowed money annual rentals of $25,000 or more that cannot be terminated on not more than 60 days’ notice without payment by the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiariespenalty;
(ii) any Contract under which the Company material partnership, joint venture or its Subsidiaries is lessee of other similar agreement or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000arrangement;
(iii) any Contract under which agreement relating to indebtedness for borrowed money or the Company or its Subsidiaries is lessor deferred purchase price of or permits any third party to hold or operate, property (in each either case, whether incurred, assumed, guaranteed or secured by any tangible property (other than real propertyasset), owned or controlled by the Company or its Subsidiaries, except for any lease or such agreement under which the with an aggregate annual rental payments do outstanding principal amount not exceed exceeding $200,00050,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract agreement that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, area; or
(Bv) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting agreement, commitment, arrangement or purporting plan not made in the ordinary course of business that is material to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;Company.
(vib) any Contract requiring any future capital Each agreement, contract, plan, lease, arrangement or commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the ClosingSection 3.11(a) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to agreement of the Company’s Knowledge, the counterparties thereto, and is in full force and effect effect, and enforceable in accordance with its terms against none of the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledgeknowledge of Sellers, any other party thereto is in default or breach in any respect under the counterparties theretoterms of any such agreement, contract, plan, lease, arrangement or commitment, except for any such defaults or breaches which would not have a Company Material Adverse Effect. The [**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission. Schedules (or similar attachments) referred to and listed herein shall have been omitted pursuant to Item 601(b)(2) of Regulation S-K. A copy of any omitted schedule (or similar attachment) will be furnished to the Commission upon request.
(c) Each Assigned Nutley License and Assigned Basel License is a valid and binding agreement of Roche Nutley or Roche Basel, as the case may be, and is in full force and effect, and neither such Seller nor, to the knowledge of Sellers, any other party thereto is in default or breach in any respect under the terms of any such Assigned Nutley License or Assigned Basel License, except for any such defaults or breaches which would not have a Company Material Adverse Effect. Other than as listed on Section 3.11(c) of the Sellers Disclosure Schedule, to the knowledge of Sellers, none of Roche Nutley, Roche Basel or the Company has made available to Parent true and complete copies of all Material Contracts in effect as received any written notice under any of the date hereof (other than purchase orders, invoices, Assigned Nutley Licenses and similar confirmatory Assigned Basel Licenses asserting that there has been or administrative documents that are ancillary there is likely to the main contractual relationship between the parties to occur a particular Contract breach or group of Contracts default under such Assigned Nutley Licenses and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Assigned Basel Licenses.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement, Stock and Asset Purchase Agreement (Arrowhead Research Corp)
Material Contracts. (a) Section 3.13(a3.5(a) of the Company Disclosure Schedule contains Letter lists all material Contracts to which any Caravelle Company is a listing party, by which any Caravelle Company is bound or to which any Caravelle Company or any of all Contracts described its assets or properties are subject that are in clauses (i) through (xiii) below to which, effect as of the date of this AgreementAgreement and constitute or involve the following (together with all amendments, waivers or other changes thereto, each of the Company following, a “Material Contract”):
(i) obligations of, or its Subsidiaries is a party payments to, any of the Caravelle Companies of $1,000,000 or by which they are bound, more;
(ii) any outstanding Indebtedness (other than a Company Benefit Plancapitalized lease obligations incurred in the Ordinary Course) of $500,000 or more, and that are not expired or have not been terminated and not including any Contracts pursuant to which convertible debt/equity instruments;
(iii) any real property leasehold interest (“Real Property Lease”) involving aggregate payments in excess of $2,500 per month in the Company has with no material outstanding or executory obligations or Liabilities calendar year ended October 31, 2021;
(such Contracts as are iv) any IP Licenses required to be set forth listed on Section 3.13(a3.6(f) of the Company Disclosure ScheduleLetter;
(v) the grant of rights to manufacture, produce, assemble, license, market or sell any Company Products with an aggregate or one-time consideration exceeding $500,000;
(vi) Contracts with any Governmental Authority;
(vii) Contracts which (A) remain in effect immediately following the “Material Contracts”Closing and limit the right of any Caravelle Company to engage in any line of business or in any geographic area, or to Develop, manufacture, produce, assemble, license or sell any products or services (including the Company Products). , or to compete with any Person; (B) grant any exclusive license of material Intellectual Property to any Person that is not a Caravelle Company or (C) involve any joint, collaborative or other Development or contribution of any material Intellectual Property by any Caravelle Company;
(viii) Contracts between (A) on the one hand, any of the Caravelle Companies, and (B) on the other hand, any Company Shareholder, including all Side Letters;
(ix) Contracts that in the Company’s determination will be required to be filed with the Proxy/Registration Statement under applicable SEC requirements pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act if the Company was the registrant.
(b) True, correct and complete copies of the Contracts required to be listed on Section 3.13(a3.5(a) of the Company Disclosure Schedule Letter, have previously been delivered to or made available to Parent or its agents or representativesSPAC prior to the date of this Agreement, together with all amendments thereto):.
(ic) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do Except as have not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do had and would not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business orhave, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution toa Company Material Adverse Effect, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the knowledge of the Company’s Knowledge, all Contracts to which any of the counterparties theretoCaravelle Companies is a party or by which its assets are bound are valid, binding and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries andeffect, to the Company’s Knowledge, the counterparties thereto (subject to except as limited by applicable bankruptcy, insolvency, reorganization, moratorium or and other Laws of general application affecting generally the enforcement of creditors’ rights generally and subject by Laws relating to general principles the availability of equity)specific performance, injunctive relief or other equitable remedies, and (ii) none of the Company or its Subsidiaries andCaravelle Companies (nor, to the knowledge of the Company’s Knowledge, any other party to any such Contract) is or, with the giving of notice, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) otherwise, would result be in a material breach of, or default under, under any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as which any of the date hereof Caravelle Companies is or will be a party or by which its assets are bound.
(d) Since October 31, 2021, none of the Caravelle Companies has declared or paid any dividends or authorized or made any distribution upon or with respect to any class or series of its capital stock or other equity interests or made any loans or advances to any Person, other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary ordinary advances to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)employees for travel expenses.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Pacifico Acquisition Corp.), Merger Agreement (Pacifico Acquisition Corp.)
Material Contracts. (a) Section 3.13(a6.17(a) of the Company UWWH Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as Schedules sets forth each of the date following that UWWH or any of this Agreement, the Company or its Subsidiaries is a party to or bound by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):date hereof:
(i) any non-competition agreements or any other Contract relating to Indebtedness for borrowed money that materially limits or will materially limit any of the Company UWWH or its Subsidiaries from engaging in their respective businesses or to the placing of a Lien (other than a Permitted Lien) on contains exclusivity, non-solicitation or “most favored nation” provisions that materially limit or would materially limit any material assets or properties of the Company UWWH or its SubsidiariesSubsidiaries from engaging in their respective businesses;
(ii) any Contract under which the Company with respect to any partnerships, joint ventures or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000strategic alliances material to UWWH;
(iii) any Contract under pursuant to which the Company any of UWWH or its Subsidiaries is lessor of has or permits any third party to hold will incur Indebtedness for borrowed money or operate, in each case, any tangible property other material Indebtedness (other than real propertydeferred revenue), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization Contract that provides or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate will provide for annual payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life 30 million by or to UWWH or any of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property its Subsidiaries (other than any Non-Scheduled Contractsleases set forth on Section 6.8(c) of the UWWH Disclosure Schedules);
(v) any Contract that provides for annual payments in excess of $30 million and contains a “change of control” provision (Aother than leases set forth on Section 6.8(c) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the ClosingUWWH Disclosure Schedules);
(vi) any Contract requiring that is a settlement, conciliation or similar agreement with any future capital commitment Governmental Authority or capital expenditure (pursuant to which UWWH or series any of capital expenditures) by the Company or its Subsidiaries in an amount will be required after the date of this Agreement to pay consideration in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement1 million;
(vii) any Contract requiring for the Company employment or its Subsidiaries to guarantee the Liabilities engagement of any Person (UWWH Employee or other than the Company individual on a full-time, part-time or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case consulting basis and providing for annual compensation in excess of $200,000250,000 but excluding offer letters with non-binding compensation terms that (A) permit discretionary periodic adjustments to the base rate of compensation and incentive compensation payable thereunder, (B) do not commit to any severance obligations, other than under the generally applicable UWWH severance policy and (C) do not contain any other material elements of compensation or benefits thereunder other than participation in the applicable UWWH benefits programs on the same terms as other similarly situated employees;
(viii) any Contract that limits or otherwise restricts the ability of UWWH or any of its Subsidiaries to pay dividends or make distributions to the UWWH Stockholder; or
(ix) any license agreement or Contract that is material to UWWH’s business under which the Company UWWH or any of its Subsidiaries hasis a licensee or licensor of any Intellectual Property or that is a settlement, directly royalty, covenant not to ▇▇▇, consent, concurrent use or indirectly, made or agreed to make any loan, advance, or assignment of payment other agreement with respect to any Person outside Intellectual Property that is material to UWWH’s business (in each case other than non-disclosure agreements entered into in the ordinary course of business and licenses and related service agreements for any item of commercially available, unmodified software with an annualized license fee of less than $2.5 million). The Contracts required to be set forth on Section 6.17(a) of the Ordinary Course UWWH Disclosure Schedules, the collective bargaining agreements set forth on Section 6.15(a) of Business orthe UWWH Disclosure Schedules (and any other such Contracts entered into in the ordinary course of business prior to the Closing) and real property leases for facilities in excess of 200,000 rentable square feet (it being understood that such leases as are in effect as of the date hereof are set forth on Section 6.8(c) of the UWWH Disclosure Schedules and are marked with an asterisk) are referred to herein as the “UWWH Material Contracts”. UWWH has provided IP with a correct and complete copy of all UWWH Material Contracts in effect as of the date hereof.
(b) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution toa UWWH Material Adverse Effect, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 each of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company UWWH Material Contracts are valid and in full force and effect, against UWWH or its Subsidiaries Subsidiary which is a party thereto (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made will become a party thereto in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract connection with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xivTransactions) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the CompanyUWWH’s Knowledge, the counterparties counterparty thereto, and is in full force constitute legal, valid and effect and enforceable in accordance with its terms against the Company binding obligations of UWWH or its Subsidiaries Subsidiary which is party thereto and, to the CompanyUWWH’s Knowledge, the counterparties counterparty thereto, enforceable by UWWH or the Subsidiary which is a party thereto in accordance with their terms except to the extent that such enforceability may be limited by (subject to i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereinafter in effect, relating to creditors’ rights generally and general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) or (ii) Laws affecting generally relating to the enforcement of creditors’ rights and subject to general principles employee restrictive covenants.
(c) Neither UWWH nor any of equity), (ii) the Company or its Subsidiaries andis in material breach or default under (and no event has occurred, and neither UWWH nor its Subsidiaries has violated any provisions of, or committed or failed to perform any act that, with notice or the passage of time or both would constitute a material breach or default under) any UWWH Material Contract nor, to the CompanyUWWH’s Knowledge, the counterparties thereto are not is any other party to any UWWH Material Contract in material breach ofdefault thereunder, except as has not had and would not reasonably be expected to have, individually or default underin the aggregate, any a UWWH Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Xpedx Holding Co), Merger Agreement (Xpedx Holding Co)
Material Contracts. (a) Section 3.13(a) of Except as set forth on SCHEDULE 5.13 hereto, neither the Company Disclosure Schedule contains nor any Subsidiary is a listing of all Contracts described in clauses party to any (i) through (xiii) below to which, as material contract not made in the ordinary course of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
business; (ii) contract for the employment of any Contract under which the Company officer or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
employee; (iii) any Contract under which contract for the Company future purchase of materials, supplies, services, merchandise or its Subsidiaries is lessor equipment not capable of being fully performed or permits any third party to hold not terminable within a period of one year from the date hereof or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
excess of normal operating requirements; (iv) agreement for the sale or lease of any of its assets other than in the ordinary course of business; (Av) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization contract or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries commitment for capital expenditures in excess of $1,000,000 over the life 100,000; (vi) lease of the Contract machinery or equipment involving annual payments in excess of $100,000; (vii) loan agreement, promissory note issued by it, guarantee, subordination or similar type of agreement; (viii) stock option, retirement, severance, pension, bonus, profit sharing, group insurance, medical or other fringe benefit plan or program providing employee benefits; (ix) consulting agreement; (x) municipal or other governmental franchise agreements; (xi) agreement with a labor union or labor association; (xii) agreement providing for indemnification of any other parties; or (Bxiii) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, agreement restricting the freedom of the Company or 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 operations of Parent Company's or any of its Affiliates after the Closing, Subsidiaries' ability to conduct business generally (Bor any type of business) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any location. Complete and correct copies of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 such agreement have been furnished or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required available to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made Acquiror. Except as set forth in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicableSCHEDULE 5.13 hereto, to the Company’s KnowledgeSeller's knowledge, all of the counterparties theretoforegoing agreements, leases, and is other documents are valid, binding and in full force and effect effect, and enforceable in accordance with its terms against the Company or and its Subsidiaries and, have performed all of the obligations required to the Company’s Knowledge, the counterparties thereto (subject be performed by them to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights date and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, default (or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or bothboth will be in default) under any of the agreements, leases, contracts or other documents to which any of then is a party listed on SCHEDULE 5.13, other than for those failures to perform and defaults which, in the aggregate, would not be reasonably likely to result in a material breach ofMaterial Adverse Effect. Except as set forth in SCHEDULE 5.13 hereto, or default underto the Seller's knowledge, any Material Contract by no party with whom the Company or its Subsidiaries ora Subsidiary has such a scheduled agreement is in default (or with notice of lapse of time or both will be in default) thereunder, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and thatwhich default, in each casethe aggregate, do not contain would be reasonably likely to result in a Material Adverse Effect. Except as disclosed herein or in SCHEDULE 5.13 hereto, neither the Company nor any Subsidiary is a party to any non-competition or similar agreement which restricts in any material executory or continuing terms, conditions, obligations or rights)way the current operation of their businesses taken as a whole.
Appears in 2 contracts
Sources: Merger Agreement (Universal Outdoor Holdings Inc), Merger Agreement (Universal Outdoor Holdings Inc)
Material Contracts. (a) Section 3.13(a3.11(a) of the Company Seller Disclosure Schedule contains sets forth a listing complete and accurate list of all Contracts described in clauses (i) through (xiii) below to which, as of the date of this Agreement, which the Company or any of its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, that fall within the following categories and that are not expired or have not been terminated and not including any existing as of the date hereof (the Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth listed on Section 3.13(a3.11(a) of the Company Seller Disclosure Schedule, collectively, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiariesall Real Property Leases;
(ii) other than purchase orders issued in the Ordinary Course of Business, any Contract under which for the Company purchase of services, equipment or its Subsidiaries is lessee other assets providing for either (A) annual payments by the Business of $300,000 or holds more; or operates(B) give rise to anticipated receipts of more than $300,000 in any calendar year, in each case, case that cannot be terminated on not more than 90 days' notice without payment by the Business of any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000material penalty;
(iii) any Contract for capital expenditures by the Company or any of its Subsidiaries in excess of $300,000 in the aggregate remaining due as of the date hereof;
(iv) any Contract that is a lease under which the Company or its Subsidiaries is lessor of of, or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiariesand used in the Business, except for any lease or agreement Contract under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)300,000;
(v) any Contract that (A) limits partnership, joint venture, minority investment or purports to limit, in any material respect, the freedom of the Company joint development agreement or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or other similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the ClosingContract;
(vi) any Contract requiring relating to the acquisition or disposition of any future capital commitment business (whether by merger, sale of stock, sale of assets or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries otherwise), in an amount in excess of each case, (A) $300,000 annually since January 1, 2021 or (Bb) $1,000,000 over the life of the agreementpursuant to which a Company has an earnout or deferred or contingent purchase price obligation or indemnification obligation;
(vii) any Contract requiring (x) pursuant to which the Company or any of its Subsidiaries is liable for indebtedness for borrowed money or any guarantee thereof, or (y) pursuant to guarantee which the Liabilities Company or any of its Subsidiaries has granted any Person Lien (other than a Permitted Lien) on the Company assets or a Subsidiary) properties of the Business or pursuant to which any Person (other than material assets or properties of the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000Business;
(viii) any Contract under the primary purpose of which is to bind the Company Business to indemnify any other Person, with such obligation continuing after the date hereof, excluding for the sake of clarity, any sales, supply, distribution, service or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of other similar agreement entered into in the Ordinary Course of Business orthat includes an indemnity with any customer, individually supplier, distributor or in service provider of the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any PersonBusiness;
(ix) any Contract required granting to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which a right of first refusal or right of first offer on the Company or its Subsidiaries (or Parent or sale of any material part of any of its Affiliates after the Closing) is assets or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events properties of the Business or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, an option to purchase, option to license acquire, sell or any other similar rights with respect to dispose of any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make (other than inventory in the ordinary course of business);
(x) any payment Contract containing covenants expressly limiting in any material respect the freedom or incur any Liability as a result ability of the consummation Business to conduct any line of business or compete with any Person in a product line or line of business or operate in any jurisdiction or solicit or hire employees, excluding reasonable limitations on use in connection with confidentiality, research or consulting agreements;
(xi) other than purchase orders issued in the Ordinary Course of Business, any sales, distribution or other similar Contract (whether with a dealer or otherwise) providing for the sale by the Business of materials, supplies, goods, services, equipment or other assets that provides for annual payments to the Business of $100,000 or more that cannot be terminated on not more than 90 days’ notice without payment by the Business of any material penalty;
(xii) any Contract relating to any swap, forward, futures, warrant, option or other derivative transaction;
(xiii) any Contract that contains material exclusivity requirements or similar provision binding on the Business;
(xiv) any Contract containing “most favored nation” provisions or other preferential pricing terms;
(xv) any Contract with a Governmental Authority;
(xvi) any Contract pursuant to which the Company or any Subsidiary has agreed to settle or compromise any pending or threatened Proceeding and under which any of the transactions contemplated by this Agreement, termination of employment or both; andforegoing has continuing obligations (other than confidentiality obligations with respect thereto);
(xvii) any Contract providing for the employment or engagement by the Company or any of its Subsidiaries of any Person on a full-time, part-time, independent contractor, temporary or other Contract the performance of which requires either basis, other than Contracts (A) annual payments to or from terminable by the Company or any of its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty for any reason upon less than thirty (30) days’ prior written noticenotice without incurring any liability or (B) providing for annual base compensation for such individual that is less than $100,000;
(xviii) any collective bargaining agreement or other Contract with any labor union or similar labor organization;
(xix) any Contract pursuant to which the Company or any of its Subsidiaries has agreed to loan any Person any amount or otherwise make any investment in any other Person, other than employee loans or advances in the Ordinary Course of Business;
(xx) any Contract pursuant to which the Company or any of its Subsidiaries grants or is granted a license or right to use, or covenant not to be sued under, any Intellectual Property Rights, other than (A) ”shrink wrap,” “off-the shelf” or other non-exclusive licenses for generally commercially available Software, including “software as a service” or similar services that are licensed to or procured by the Company or any of Subsidiaries for an annual fee of less than $300,000 (B) non-exclusive licenses granted to customers of the Business in the Ordinary Course of Business and (C) non-exclusive licenses granted by or to employees or contractors in the Ordinary Course of Business;
(xxi) any Contract relating to the acquisition, development, sale or disposition of any material Company Intellectual Property Rights, other than assignments of Intellectual Property Rights to the Company or any of its Subsidiaries from such entities’ employees or contractors in the Ordinary Course of Business;
(xxii) any Contracts with a Related Party (a “Related Party Transaction”), other than (i) the Award Agreements, (ii) employment arrangements with employees, officers and directors of the Company or any of its Subsidiaries, which arrangements are disclosed pursuant to Section 3.11(b)(xvii), (iii) the LLC Agreement and (iv) Contracts with Representatives who are not directors, managers, officers or employees of the Company or its Subsidiaries; or
(xxiii) (i) any Contract (other than purchase orders entered into in the Ordinary Course of Business) with a Material Customer that provides for annual payments to the Business of $500,000 or more or (ii) any Contract with a Material Supplier (other than purchase orders) that provides for annual payments by the Business of $500,000 or more.
(ib) Each Material Contract is a valid and binding on agreement of the Company or any of its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, Subsidiaries and is in full force and effect effect, and enforceable in accordance with its terms against none of the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement any of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledgeknowledge, any other party is in default or breach under the counterparties theretoterms of any such Material Contract, except for any such defaults or breaches that would not, and would not reasonably be expected to, individually or in the aggregate, be material to the Business, taken as a whole. The Since the Balance Sheet Date, neither the Company nor any of its Subsidiaries has made available received any written notice on or prior to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase ordersof any intention to terminate, invoicesrepudiate or disclaim, or materially reduce the amount of purchases or sales under any Material Contract from any party thereto, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between Company’s knowledge, no such action has been threatened and neither the parties to a particular Contract or group of Contracts and that, in each case, do not contain Company nor any material executory Subsidiary has delivered or continuing termsthreatened any such action. Seller has provided to Buyer a true, conditionscomplete and correct copy of each Material Contract (including any amendments, obligations modifications or rightssupplements thereto).
Appears in 2 contracts
Sources: Merger Agreement (MasterBrand, Inc.), Merger Agreement (MasterBrand, Inc.)
Material Contracts. (a) Except for this Agreement, Section 3.13(a) 4.20 of the Company Disclosure Schedule Letter contains a listing of all Contracts described in clauses (i) through (xiii) below to whichcomplete and correct list, as of the date of this Agreement, of each Contract described below in this Section 4.20(a) under which the Company or its Subsidiaries 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 their respective properties or assets is a party or by which they are boundsubject, in each case as of the date of this Agreement other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Plans (all Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, type described in this Section 4.20(a) being referred to herein as the “Material ContractsContract”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money that (A) limits, curtails or restricts the ability of the Company or any Company Subsidiary to (x) compete or conduct activities in any geographic area or line of business with any Person or (y) use or enforce any Intellectual Property, or (B) includes any “most favored nation”, exclusive marketing, right of first refusal, first offer or first negotiation or other exclusive rights of any type or scope or that otherwise restrict the Company or any Company Subsidiary (or, upon completion of the Offer and the Merger, would restrict Parent or any of its Subsidiaries from engaging or competing in any line of business or in any geographic area), in the case of clauses (A) and (B) that would reasonably be expected to be material to the placing operations of the Company and Company Subsidiaries, taken as a whole;
(ii) each acquisition or divestiture Contract or licensing agreement 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 $7,500,000;
(iii) any Contract (excluding licenses for commercial off the shelf computer software that are generally available on nondiscriminatory pricing terms) under which the Company or any Company Subsidiary is granted any license, option or other right (including a covenant not to be sued or right to enforce or prosecute any patents) with respect to any Intellectual Property of a Lien third party, or under which any third party is granted any license, option or other right (other than including a Permitted Liencovenant not to be sued or right to enforce or prosecute any patents) on with respect to any material assets or properties Intellectual Property of the Company or its any Company Subsidiary, in each case, which Contract is material to the Company and the Company Subsidiaries, taken as a whole;
(iiiv) any Contract providing for indemnification, contribution or any guaranty in an amount that is material to the Company and the Company Subsidiaries, taken as a whole;
(v) any Contract under which the Company or its Subsidiaries is lessee of any Company Subsidiary grants or holds agrees to grant a license under all or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life substantially all of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom patents of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of and the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the ClosingSubsidiaries;
(vi) any material Contract requiring any future capital commitment with a Major Customer or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreementMajor Supplier;
(vii) any Contract requiring with any Governmental Entity that is material to the conduct of the business of the Company or its Subsidiaries to guarantee the Liabilities any of any Person (other than the Company or Subsidiaries taken as a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000whole;
(viii) each Contract not otherwise described in any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment other subsection of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on this Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A4.20(a) pursuant to which the Company or its any Company Subsidiary is obligated to pay, or entitled to receive, payments in excess of $10,000,000 in the twenty-four (24)-month period following the date hereof, which cannot be terminated by the Company or such Company Subsidiary on less than sixty (60) days’ notice without material payment or penalty;
(ix) each Contract relating to outstanding Indebtedness of the Company or the Company Subsidiaries (or Parent for borrowed money, any indenture or any of its Affiliates after financial guaranty thereof (whether incurred, assumed, guaranteed or secured by any asset) other than (A) Contracts solely among the Closing) is or may be required to pay milestones, royalties or other contingent payments based on Company and any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or wholly owned Company Subsidiary and (B) under which any Contracts relating to Indebtedness explicitly filed with the SEC in the Company SEC Documents on its Electronic Data Gathering Analysis and Retrieval System;
(x) each material Contract that provides for or its Subsidiaries grants relates to any Person any right of first refusalinterest rate derivatives, right of first negotiation, option to purchase, option to license currency derivatives or any other similar rights with respect to any material Company Product or any material Intellectual Propertyderivatives;
(xi) any each Contract for the disposition of any portion of the assets or business of between the Company or its Subsidiaries or for the acquisition by the any Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its SubsidiariesSubsidiary, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the director or affiliate (other than a wholly owned Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingentSubsidiary) of the Company or any Company Subsidiary or any of its Subsidiaries to make any payment their respective “associates” or incur any Liability “immediate family” members (as a result such terms are defined in Rule 12b-2 and Rule 16a-1 of the consummation 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 or family member, but not including any Company Benefit Plans;
(xii) any material joint venture, strategic alliance, joint development or partnership agreement;
(xiii) any collective bargaining agreement or other Contract with any labor union, labor organization or work council;
(xiv) (A) all employment Contracts of those employees and managers that received from the transactions contemplated by Company or any Company Subsidiary annual compensation (including base salary, commissions, and annual or other periodic or project bonuses) in excess of $150,000 paid through the date of this AgreementAgreement for fiscal year 2015, termination and (B) all consulting Contracts for those consultants that received from the Company or any Company Subsidiary annual compensation in excess of employment $150,000 paid through the date of this Agreement for fiscal year 2015 (provided that references to such Contracts have been made completely anonymous for those employees, managers or bothconsultants based in jurisdictions where this is required under applicable data privacy/protection Laws); and
(xviixv) any Contract not otherwise described in any other subsection of this Section 4.20(a) that would constitute a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company.
(b) Neither the Company nor any Company Subsidiary is in breach of or default under the terms of any Material Contract where such breach or default would have or reasonably be expected to have, individually or in the performance aggregate, a Company Material Adverse Effect. To the knowledge of which requires either the Company, as of the date hereof, no other party to any Material Contract is in breach of or default (Aand no event has occurred or condition or circumstance exists that would, with or without notice or lapse of time, would reasonably be expected to result in a breach of default) annual payments under the terms of any Material Contract where such breach or default would have or reasonably be expected to have, individually or from in the aggregate, a Company Material Adverse Effect. Except as would not have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Material Contract is a valid and binding obligation of the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement Subsidiary which is party thereto and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the knowledge of the Company’s Knowledge, the counterparties of each other party thereto, enforceable against each such Person in accordance with its terms, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries andeffect, subject to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Enforceability Limitations.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Fairchild Semiconductor International Inc), Agreement and Plan of Merger (On Semiconductor Corp)
Material Contracts. (a) Section 3.13(a4.16(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to whichtrue and complete list, as of the date of this Agreement, of each of the following types of contracts and agreements to which the Company or its Subsidiaries any Company Subsidiary is a party or by which they are boundbound (including counterparty name, other than a Company Benefit Plandate, and that are not expired or have not been terminated all amendments of a material nature thereto), excluding for this purpose, any employment contract and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities purchase orders submitted by customers (such Contracts contracts and agreements as are required to be set forth on Section 3.13(a4.16(a) of the Company Disclosure Schedule, excluding any Plan listed on Section 4.10(a) of the Company Disclosure Schedule, being the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) all currently effective contracts and agreements with consideration paid or expected to be payable to the Company or any Contract relating to Indebtedness for borrowed money of the Company Subsidiaries of more than $2,500,000 in the aggregate (including, for greater certainty, consideration paid or its Subsidiaries or payable to the placing of a Lien (other than a Permitted Lien) on Company or any material assets or properties of the Company Subsidiaries pursuant to purchase orders or its Subsidiariesmaster terms applicable to such contracts and agreements) over any 12-month period after December 31, 2018;
(ii) any Contract under which all currently effective contracts and agreements with Suppliers to the Company or its any Company Subsidiary, including those relating to the design, development, manufacture or sale of Products of the Company or any Company Subsidiary, under which aggregate expenditures of more than $2,500,000 in the aggregate (including, for greater certainty, expenditures paid or payable to the Company or any of the Company Subsidiaries is lessee of pursuant to purchase orders or holds master terms applicable to such contracts and agreements with Suppliers) have been paid or operatesare expected to be payable by the Company or any Company Subsidiary, in the aggregate, over any 12-month period after December 31, 2018;
(iii) all management contracts and contracts with other consultants, in each case, excluding Plans and any tangible property employment contracts, that are material to the business of the Company and not terminable without further monetary liability on sixty (other than real property), owned by any other Person, 60) days’ or less notice (except for any lease notice or agreement severance to the extent required under which the aggregate annual rental payments do not exceed applicable Law for non-U.S. employees, and where further potential monetary liability is less than $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property250,000), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) all contracts or agreements involving the payment of royalties or other amounts calculated based upon the revenues or income of the Company or any Company Subsidiary or income or revenues related to any Product of the Company or any Company Subsidiary to which the Company or any Company Subsidiary is a party and pursuant to which the Company or any Company Subsidiary has made or is expected to make payments of more than $2,500,000, in the aggregate, over any 12-month period after December 31, 2018;
(Av) joint ventureall contracts and agreements evidencing indebtedness for borrowed money in an amount greater than $2,500,000, profit-sharingand any pledge agreements, security agreements, hypothec or other collateral agreements in which the Company or any Company Subsidiary granted to any person a security interest in or Lien on any property or assets of the Company or any Company Subsidiary that is material to the conduct of the business of the Company and the Company Subsidiaries, and all agreements or instruments guarantying the debts or other obligations of any person;
(vi) all partnership, collaboration, co-promotion, commercialization or research or development Contract, joint venture or similar Contract, in each case, agreements;
(vii) all contracts and agreements with any Governmental Authority to which requires, the Company or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate Company Subsidiary is a party that involve payments to or from by the Company or its any Company Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)2,500,000;
(vviii) any Contract all contracts and agreements that (A) limits limit, or purports purport to limit, in any material respect, the freedom ability of the Company or its Subsidiaries any Company Subsidiary to engage or compete in any line of business or with any Person person or entity or in any geographic area or that would so limit or purport to limitduring any period of time, in any material respect, the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Personexcluding customary confidentiality obligations;
(ix) all contracts and agreements that relate to the direct or indirect acquisition or disposition of any Contract required to be disclosed on Section 3.19 securities or business (whether by merger, sale of the Company Disclosure Schedulestock, sale of assets or otherwise);
(x) any Contract with any Person (A) pursuant all contracts and agreements relating to which the a Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual PropertyInterested Party Transaction;
(xi) all contracts and agreements involving any Contract for the disposition resolution or settlement of any portion of the assets actual or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price threatened Action or other contingent dispute which require payment in excess of $2,000,000 or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary impose continuing obligations on the Company or its Subsidiaries (any Company Subsidiary, including injunctive or Parent or any of its Affiliates after the Closing)other non-monetary relief; and
(xiiixii) each collective bargaining agreement or other Contract with all contracts and agreements not otherwise identified pursuant to the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either foregoing if (A) annual payments the violation, breach, or termination thereof would reasonably be expected to or from the have a Company or its Subsidiaries in excess of $300,000 Material Adverse Effect, or (B) aggregate payments such contacts or agreements are otherwise considered material to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable and the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeon a consolidated basis.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect effect, is a legal, valid and enforceable in accordance with its terms against binding obligation of the Company or its the Company Subsidiaries (as applicable) and, to the knowledge of the Company’s Knowledge, the counterparties thereto (other parties thereto, subject to applicable bankruptcythe Remedies Exceptions, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) neither the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not nor any Company Subsidiary is in material breach or violation of, or material default under, any Material Contract and nor has any Material Contract been canceled by the other party; (iiiii) to the Company’s knowledge, no event has occurred that (with or without due notice or lapse of time or both) would result other party is in a material breach or violation of, or material default under, any Material Contract by Contract; and (iii) the Company and the Company Subsidiaries have not received any notice or its Subsidiaries orclaim of any such breach, to the Company’s Knowledge, the counterparties theretoviolation or default under any such Material Contract. The Company has made available to Parent NGA true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase ordersContracts, invoices, and similar confirmatory or administrative documents including any amendments thereto that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, material in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)nature.
Appears in 2 contracts
Sources: Business Combination Agreement (Lion Electric Co), Business Combination Agreement (Northern Genesis Acquisition Corp.)
Material Contracts. (ai) Except as listed in Section 3.13(a3.3(k) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to whichLetter, as of the date of this Agreement, the Company or neither Sabal Palm nor any of its Subsidiaries nor any of their respective assets, businesses, or operations is a party to, or by which they are boundis bound or affected by, other than a Company Benefit Planor receives benefits under, and that are not expired (A) any employment, severance, termination, consulting, retention, or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities retirement Contract, (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(iB) any Contract relating to Indebtedness for borrowed the borrowing of money by Sabal Palm or any of the Company or its Subsidiaries or to the placing guarantee by Sabal Palm or any of a Lien its Subsidiaries of any such obligation (other than a Permitted Lien) on any material assets or properties Contracts evidencing deposit liabilities, purchases of federal funds, fully-secured repurchase agreements, and Federal Home Loan Bank advances of the Company Bank or its Subsidiaries;
Contracts pertaining to trade payables incurred in the ordinary course of business consistent with past practice), (iiC) any Contract under which containing covenants that limit the Company ability of Sabal Palm or any of its Subsidiaries is lessee or any of their Affiliates (including, after the Effective Time, Seacoast or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iiiof its Affiliates) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, engage in any material respect, the freedom line of the Company business or its Subsidiaries to engage or compete in any line of business or with any Person or in any area Person, or that would so limit involve any restriction of the geographic area in which, or purport to limitmethod by which, in any material respect, the operations of Parent Sabal Palm or any of its Subsidiaries Affiliates (including, after the ClosingEffective Time, Seacoast or any of its Affiliates) may carry on its business, (BD) contains any exclusivityContract or series of related Contracts for the purchase of materials, supplies, goods, services, equipment or other assets that (x) provides for or is reasonably likely to require annual payments by Sabal Palm or any of its Subsidiaries of $25,000 or more or (y) have a term exceeding 12 months in duration (except those entered into in the ordinary course of business with respect to loans, lines of credit, letters of credit, depositor agreements, certificates of deposit and similar routine banking activities and equipment maintenance agreements that are not material), (E) any Contract involving Intellectual Property (excluding generally commercially available “most favored nationoff the shelf” software programs licensed pursuant to “shrink wrap” or “click and accept” licenses), (F) any Contract relating to the provision of data processing, network communications or other material technical services to or by Sabal Palm or any of its Subsidiaries, (G) any Contract to which any Affiliate, officer, director, employee or consultant of Sabal Palm or any of its Subsidiaries is a party or beneficiary (except with respect to loans to, or deposits from, directors, officers and employees entered into in the ordinary course of business consistent with past practice and in accordance with all applicable regulatory requirements with respect to it), (H) any Contract with respect to the formation, creation, operation, management or control of a joint venture, partnership, limited liability company or other similar provisionsarrangement or agreement, obligations (I) any Contract that provides any rights to investors in Sabal Palm or restrictions any of its Subsidiaries, including registration, preemptive or anti-dilution rights or rights to designate members of or observers to the Sabal Palm Board of Directors, (J) any Contract that provides for potential material indemnification payments by Sabal Palm or any of its Subsidiaries, or (CK) contains any other provisions restricting Contract or purporting amendment thereto that would be required to restrict be filed as an exhibit to any SEC Report (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K) if Sabal Palm were required to file such with the ability SEC. With respect to each of its Contracts that is described above: (w) the Contract is valid and binding on Sabal Palm or any of its Subsidiaries thereto and, to the Knowledge of Sabal Palm, each other party thereto and is in full force and effect, enforceable in accordance with its terms (except in all cases as such enforceability may be limited by (1) bankruptcy, insolvency, reorganization, moratorium, receivership, conservatorship and other Laws now or hereafter in effect relating to or affecting the enforcement of creditors’ rights generally or the rights of creditors of insured depository institutions and (2) general equitable principles and except that the availability of the Company equitable remedy of specific performance or injunctive relief is subject to the discretion of the court before which any proceeding may be brought); (x) neither Sabal Palm nor any of its Subsidiaries is in Default thereunder; (y) neither Sabal Palm nor any of its Subsidiaries has repudiated or waived any material provision of any such Contract; and (z) no other party to sellany such Contract is, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customerthe Knowledge of Sabal Palm, in each case, Default in any material respect or that would so limit has repudiated or purports to limit, in waived any material respectprovision of any such Contract. No Consent is required by any such Contract for the execution, Parent delivery or performance of this Agreement or the consummation of the Merger, the Bank Merger or the other transactions contemplated hereby or thereby. Except as set forth in Section 3.3(k)(i)(B) of the Company Disclosure Letter, all indebtedness for money borrowed of Sabal Palm or any of its Affiliates after the Closing;Subsidiaries is prepayable without penalty or premium.
(viii) any Contract requiring any future capital commitment All interest rate swaps, caps, floors, collars, option agreements, futures, and forward contracts, and other similar risk management arrangements, contracts or capital expenditure (or series of capital expenditures) by the Company agreements, whether entered into for its own account or its Subsidiaries in an amount in excess of customers, were entered into (A) $300,000 annually or in the ordinary course of business consistent with past practice and in accordance with prudent business practices and all applicable Laws and (B) $1,000,000 over with counterparties believed to be financially responsible, and each of them is enforceable 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 life enforcement of creditors’ rights generally and except that the availability of the agreement;
(vii) equitable remedy of specific performance or injunctive relief is subject to the discretion of the court before which any Contract requiring proceeding may be brought), and is in full force and effect. Neither Sabal Palm nor any of its Subsidiaries, nor to the Company or its Subsidiaries to guarantee the Liabilities Knowledge of Sabal Palm, any other party thereto, is in Default of any Person (other than of its obligations under any such agreement or arrangement. The Sabal Palm Financial Statements disclose the Company or value of such agreements and arrangements on a Subsidiary) or pursuant to which any Person (other than the Company or ▇▇▇▇-to-market basis in accordance with GAAP and, since January 1, 2017, there has not been a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, change in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business orsuch value that, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result resulted in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Adverse Effect on Sabal Palm.
Appears in 2 contracts
Sources: Merger Agreement (Seacoast Banking Corp of Florida), Merger Agreement (Seacoast Banking Corp of Florida)
Material Contracts. (a) Section 3.13(a) of 3.12.1 Except for contracts set forth on the “Exhibit Index” included in the Company’s Form 10-K for the year ended December 31, 2011 or the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to whichSEC Filings subsequently filed, as of the date of this Agreement, neither the Company nor any Company Subsidiary, nor any of their respective assets, properties, businesses or operations is a party to, or bound or affected by, or receives benefits under:
(a) any Contract which is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC);
(b) any Contract relating to the borrowing of money by the Company or its Subsidiaries is a party any Company Subsidiary or the guarantee by which they are bound, the Company or any Company Subsidiary of any such obligation (other than a Company Benefit PlanContracts evidencing deposit liabilities, purchases of federal funds, fully-secured repurchase agreements, and that are not expired FHLB advances of depository institution Subsidiaries, trade payables and Contracts relating to borrowings or have not been terminated and not including guarantees made in the ordinary course of business) in excess of $1,000,000;
(c) any Contracts pursuant to Contract which prohibits or restricts the Company has or any Company Subsidiary from (i) engaging in any business activities in any geographic area, line of business or otherwise in competition with no material outstanding any other person, (ii) soliciting or executory obligations accepting business from any person or Liabilities (such iii) soliciting any person for employment or hire (excluding Contracts as are required entered into in the ordinary course with respect to be set forth on Section 3.13(a) of temporary employment, consulting arrangements and similar arrangements and it being understood that the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on will be permitted to update Section 3.13(a3.12.1(c) of the Company Disclosure Schedule within twenty (20) Business Days following the date hereof so as to provide a true and correct list of all of the Contracts containing restrictions on the soliciting of any person for employment or hire, and such updates shall be deemed to have previously been made available to Parent or its agents or representatives, together with all amendments thereto):modified Schedule 3.12.1(c) as of the date of this Agreement);
(id) any Contract between or among the Company or any Company Subsidiary;
(e) any Contract relating to Indebtedness for borrowed money the purchase or sale of the Company any goods or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled services by the Company or its Subsidiaries, except for a Company Subsidiary (other than Contracts entered into in the ordinary course of business and either (i) involving payments under any lease or agreement under which the aggregate annual rental payments do individual Contract not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $300,000 per year or $1,000,000 over the expected life of the Contract Contract, or (Bii) other Contract with respect to material involving Loans, borrowings or guarantees originated or purchased by the Company Licensed Intellectual Property (other than or any Non-Scheduled ContractsCompany Subsidiary in the ordinary course of business);
(vf) any Contract that (A) limits or purports to limit, in any material respect, the freedom of which obligates the Company or 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 limitCompany Subsidiary (or, in any material respect, following the operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability consummation of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respectMerger, Parent or any Parent Subsidiaries) to conduct business with any third party on an exclusive or preferential basis (other than Contracts entered into in the ordinary course of its Affiliates after the Closing;
business that (vii) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) can be terminated by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually relevant Company Subsidiary immediately without penalty or other obligation to make payment, or (Bii) $1,000,000 over with respect to which the life of the agreement;
(vii) any Contract requiring maximum reasonably expected termination, break or similar fee payable by the Company or its Subsidiaries to guarantee relevant Company Subsidiary (or the Liabilities of any Person (other than the Company Parent or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Parent Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which after giving effect to the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business orMerger), individually or in the aggregate, in an amount in excess of is less than $200,000 or made any capital contribution to, or other investment in, any Person100,000);
(ixg) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license offer or any other similar rights right with respect to any material Company Product assets, rights or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business properties of the Company or its Subsidiaries or for any Company Subsidiary;
(h) any Contract which limits the acquisition payment of dividends by the Company or its Subsidiaries of the assets or business of any other Person Company Subsidiary;
(other than acquisitions or dispositions made in the Ordinary Course of Business), or under i) any Contract pursuant to which the Company or its Subsidiaries any Company Subsidiary has agreed with any continuing obligation third parties to become a member of, manage or control a joint venture, partnership, limited liability company or other similar entity;
(j) any Contract pursuant to which the Company or any Company Subsidiary has agreed with respect any third party to a change of control transaction such as an acquisition, divestiture or merger and which contains representations, covenants, indemnities or other obligations (including indemnification, “earn-out,” contingent purchase price or other contingent or deferred payment obligationobligations) that are still in effect other than customary obligations to indemnify directors and officers;
(xiik) except for standard end-user license agreements to off the shelf software having a value under $10,000, for any settlementContract wherein the Company or any Company Subsidiary is the recipient of a license, conciliation sublicense (of any tier), covenant not to ▇▇▇ or similar Contract assert, or immunity from suit under any Intellectual Property rights of any other person;
(Al) requiring monetary payments except for non-exclusive licenses to the Company’s trademarks granted by the Company or its Subsidiaries after a Company Subsidiary to a vendor for the date provision of this Agreement, (B) with a Governmental Authority products or (C) that imposes any material, non-monetary obligations on services to the Company or its Subsidiaries (or Parent or a Company Subsidiary in the ordinary course of business, any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with wherein the Company or its Subsidiariesany Company Subsidiary expressly grants a license, sublicense (of any tier), covenant not to ▇▇▇ or assert, immunity from suit or similar rights under any material Company IP;
(m) except for standard employment Contracts, any Contract wherein a person assigns to the Company or a person is obligated to assign to the Company, any title, in whole or in part, solely or jointly, beneficially or actually, with respect to any Intellectual Property, or any person has an option or other right concerning any of the foregoing;
(n) any Contract that provides for a termination, break, or similar fee in excess of $100,000; or
(o) except transactions made in accordance with Regulation O and agreements entered into in the ordinary course of business for compensation or indemnity, any Contract between the Company or any Company Subsidiary, on the one hand, and (1) any labor union, labor organization officer or works council representing employees director of the Company Company, or its Subsidiaries(2) to the knowledge of the Company, any (x) record or beneficial owner of five percent (5%) or more of the voting securities of the Company, (y) affiliate or family member of any such officer, director or record or beneficial owner or (z) any other affiliate of the, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member except those of an Affiliate a type available to employees of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) generally. Each contract of the Company or any of its Subsidiaries type described in this Section 3.12.1 is referred to make any payment or incur any Liability herein as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and“Company Material Contract.”
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Section 3.12.2 Each Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and legally valid, binding and enforceable in accordance with its terms against in all material respects on the Company or its Subsidiaries and each Company Subsidiary party thereto and, to the Company’s Knowledgeknowledge, the counterparties thereto (subject to applicable each other party thereto, except as enforceability may be limited by bankruptcy, insolvency, reorganization, preference, fraudulent transfer, moratorium or other Laws similar laws relating to or affecting generally the enforcement of creditors’ rights and subject to remedies of creditors and by general principles of equity)equity regardless of whether considered in a proceeding in equity or at Law. Except as has not had, (ii) individually or in the aggregate, a Company Material Adverse Effect, the Company and each Company Subsidiary has performed all obligations required to be performed by it under each Company Material Contract and Company Lease. To the Company’s knowledge, and except as has not had, individually or in the aggregate, a Company Material Adverse Effect, each other party to each Company Material Contract and Company Lease has performed all obligations required to be performed by it under such Company Material Contract and Company Lease. None of the Company or its Subsidiaries and, to any Company Subsidiary has received written notice of any violation or default under (or any condition which with the Company’s Knowledge, passage of time or the counterparties thereto are not in material breach of, giving of notice would cause such a violation of or default under, ) any Company Material Contract and (iii) no event has occurred or Company Lease, except for violations or defaults that (with have not had, individually or without due notice or lapse of time or both) would result in the aggregate, a material breach of, or default under, any Company Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Citizens Republic Bancorp, Inc.), Merger Agreement (Firstmerit Corp /Oh/)
Material Contracts. (a) Section 3.13(aSchedule 4.17(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to whichSchedules lists, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, following types of contracts and agreements (other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant purchase orders) to which the Company has with no material outstanding or executory obligations or Liabilities is a party (such Contracts contracts and agreements as are required to be set forth on Section 3.13(ain Schedule 4.17(a) of the Company Disclosure ScheduleSchedules, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiarieseach contract and agreement with all Material Suppliers and Material Customers;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000employee collective bargaining Contract;
(iii) any Contract under which each contract and agreement with consideration paid or payable to the Company or its Subsidiaries is lessor of or permits any third party to hold or operatemore than $100,000, in the aggregate, over any 12-month period, (as well as each case, any tangible property (other than real propertyCompany asset valued at $100,000 or more and which are listed on Schedule 4.15(l), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000);
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization each contract and agreement with suppliers to the Company for expenditures paid or research or development Contract, or similar Contractpayable by the Company of more than $100,000, in each casethe aggregate, which requires, or would reasonably be expected to require (based on over any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non12-Scheduled Contracts)month period;
(v) any Contract that is a definitive merger, acquisition, purchase and sale or similar agreement entered into in connection with an acquisition or disposition by the Company since January 1, 2020, involving consideration in excess of $250,000 of any Person or of any business entity or division or business of any Person (A) limits including through merger or purports to limitconsolidation or the purchase of a controlling equity interest in or substantially all of the assets of such Person or by any other manner), but excluding any Contracts in any which the applicable acquisition or disposition has been consummated and there are no material respect, the freedom obligations of the Company ongoing;
(vi) all members of the Company have received payment for all commissions, and other remuneration owed to members, any required taxation withholdings with respect to such compensation paid to such members has been paid by the Company, and none of such individuals have any ownership rights in the Company;
(vii) any Contract evidencing or guaranteeing Company Debt or under which the Company has created, incurred, assumed or guaranteed any other Person’s indebtedness, has the right to draw upon credit that has been extended for indebtedness, or has granted a Lien on its Subsidiaries assets, whether tangible or intangible, to engage secure any indebtedness, in each case, in an amount in excess of $50,000;
(viii) all partnership agreements or other joint venture agreements that are material to the business of the Company;
(ix) all contracts and agreements with any Governmental Authority to which the Company is a party, other than any Company Permits and Environmental Permits;
(x) all contracts and agreements that materially limit, or purport to materially limit, the ability of the Company to compete in any line of business or with any Person or entity or in any geographic area or during any period of time, excluding customary confidentiality agreements and agreements that would so limit or purport contain customary confidentiality clauses;
(xi) any Contract that (A) grants to limit, in any material respect, the operations of Parent or Person any of its Affiliates after the Closing, (B) contains any exclusivitypreferred pricing, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually rights or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment grants exclusivity to any Person outside in respect of the Ordinary Course of Business orany geographic location, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution tocustomer, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company product or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligationservice;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the each Company or its Subsidiaries after the date of this Affiliate Agreement, (B) with a Governmental Authority or (C) excluding those that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding are employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, and employment agreements;
(xiii) all contracts or agreements for any Company-Licensed IP that are material to the Company Business, indemnification agreementsincluding for Intellectual Property rights incorporated in or necessary for any Products, and offer letters for atthe Business Systems of any other person (excluding both unmodified, commercially available, “off-will employmentthe-shelf” Software or shrink-wrap licenses with a replacement cost and/or aggregate annual license and maintenance fees of less than $10,000);
(xiv) all contracts relating to registration rights, drag-along, tag along, right of first refusal or put rights or any other agreements with, by the HWH Shareholder;
(xv) any employmentall contracts or agreements providing for revenues to the Company, consultingwhether currently, bonusin the future, commissions or any other compensation Contract with since January 1, 2020, in an employee or individual consultant or independent contractor, involving aggregate payments of more than amount exceeding $500,000 per year25,000;
(xvi) any employment all leases or consulting Contract with severance, change in control, retention or similar arrangements, that will master leases of personal property reasonably likely to result in annual payments of $25,000 or more in a 12-month period by the Company, or for any obligation (absolute or contingent) facility material to the operations of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or bothCompany; and
(xvii) any other commitment to enter into any Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, type described in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty clauses (30i) days’ prior written noticethrough (xiv) of this Section 4.17(a).
(ib) Each Material Contract is a legal, valid and binding on obligation of the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the knowledge of the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcyother parties thereto, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are is not in material breach or violation of, or default under, any Material Contract and (iii) nor, to the knowledge of the Company, has any Material Contract been canceled by the other party. To the Company’s knowledge, no event has occurred that (with other party is in breach or without due notice or lapse of time or both) would result in a material breach violation of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties theretoContract. The Company has not received any written claim of breach or default under any such Material Contract. The Company has furnished or made available to Parent Alset true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase ordersof this Agreement, invoices, and similar confirmatory or administrative documents including amendments thereto that are ancillary to material in nature. Each Material Contract sets forth the main contractual relationship entire agreement and understanding between the Company and the other parties to a particular Contract thereto. Since January 1, 2020, the Company has not received any notice or group of Contracts and thatrequest, in each case, do in writing, from or on behalf of any other party to a Material Contract to terminate, cancel or not contain renew such Material Contract, or to renegotiate any material executory term thereof that would reasonably be expected to have, individually or continuing termsin the aggregate, conditionsa Material Adverse Effect, obligations or rights)alleging or disputing any breach or default under such Material Contract.
Appears in 1 contract
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses Except (i) through as set forth in the ------------------ Company Reports (xiiiincluding the exhibits thereto) below filed prior to whichthe date of this Agreement, (ii) as set forth in Schedule 4.22(a), and (iii) for this Agreement and other agreements that are not material to the Company's business, as of the date of this AgreementAgreement neither the Company nor any of its Subsidiaries is a party to any oral or written (A) consulting agreement, (B) joint venture, (C) noncompetition or similar agreement that restricts the Company or its Subsidiaries is from engaging in a party line of business, (D) supply or by which they are bound, other than a Company Benefit Planoperating contract, and that are not expired (E) agreement or have not been terminated and not including any Contracts pursuant to which other arrangement of or involving the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the ClosingSubsidiaries with respect to indebtedness for money borrowed, including letters of credit, guaranties, indentures, swaps and similar agreements.
(Bb) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability Each of the Company contracts, instruments, mortgages, notes, security agreements leases, agreements or its Subsidiaries to sellunderstandings, manufacturewhether written or oral, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) Subsidiaries is a party that relates to or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of affects the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) operations of the Company or any of its Subsidiaries or to make which the Company or any payment of its Subsidiaries or incur any Liability as their respective assets or operations may be bound or subject is a result valid and binding obligation of the Company and in full force and effect with respect to the Company or such Subsidiary and, to the Company's knowledge, with respect to all other parties thereto, except for where the failure to be valid, binding and in full force and effect would not in the aggregate have a Company Material Adverse Effect. Any of the foregoing that contain a provision that triggers upon a change in control of the Company (other than those agreements set forth in Schedule 4.11(f)) are set forth on Schedule 4.22(b). Except to the extent that the consummation of the transactions contemplated by this Agreement, termination Agreement may require the consent of employment or both; and
(xvii) any other Contract the performance of third parties which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding consent requirements are set forth on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equitySchedule 4.6(a), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto there are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract existing defaults by the Company or any of its Subsidiaries thereunder or, to the knowledge of the Company’s Knowledge, by any other party thereto, which defaults in the aggregate would have a Company Material Adverse Effect; and no event of default has occurred, and no event, condition or occurrence exists, that (whether with or without notice, lapse of time, the counterparties thereto. The declaration of default or other similar event) would constitute a default by the Company or any of its Subsidiaries thereunder, other than defaults that would not in the aggregate have a Material Adverse Effect.
(c) Except as set forth in Schedule 4.22(c), the Company has made available no agreements or arrangements to Parent true sell or otherwise dispose of, or lease, acquire or otherwise invest in, any property, lines of business or other assets that are in the aggregate material to the Company's business, other than agreements and complete copies of all Material Contracts arrangements for such sale, disposition, lease, acquisition or investment that are in effect as the ordinary course of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Company's business.
Appears in 1 contract
Material Contracts. (a) Section 3.13(a3.8(a) of the Company Disclosure Schedule contains Schedules sets forth a listing list of all Contracts described in clauses (i) through (xiii) below the following Contracts, other than the Employee Benefit Plans, to whichwhich the Company or any of its Subsidiaries is, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are each Contract required to be set forth on Section 3.13(a3.8(a) of the Company Disclosure ScheduleSchedules, together with each of the Contracts entered into after the date of this Agreement that would be required to be set forth on Section 3.8(a) of the Company Disclosure Schedules if entered into prior to the execution and delivery of this Agreement, collectively, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or any of its Subsidiaries or to the placing of a Lien (other than a any Permitted Lien) on any material assets or properties of the Company or any of its Subsidiaries;
(ii) any Contract under which the Company or any of its Subsidiaries is lessee of or holds or operates, in each case, any material tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,00025,000;
(iii) any Contract under which the Company or any of its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or any of its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,00025,000;
(iv) any (A) Contract for any joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization collaboration or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)strategic alliance;
(v) any Contract with a licensed healthcare professional, and any entity or organization relating to the development, manufacturing, testing, clinical trials, or marketing of any Company Product;
(vi) any Contract that (A) limits or purports to limit, in any material respect, limit the freedom of 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, limit the operations of Parent Redwoods or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions restrictions, or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or any of its Subsidiaries to sell, manufacture, develop, commercialize, test or research productsthe Company Products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent limit Redwoods or any of its Affiliates after the Closing;
(vivii) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or any of its Subsidiaries in an amount in excess of (A) $300,000 annually 25,000 annually, or (B) $1,000,000 50,000 over the life of the agreement;
(viiviii) any Contract requiring the Company or any of its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiaryany of its Subsidiaries, in each case in excess of $200,00025,000;
(viiiix) any Contract under which the Company or any of its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person, in each case in excess of $25,000;
(ixx) any Contract required to be disclosed on Section 3.19 3.20 of the Company Disclosure ScheduleSchedules;
(xxi) any Contract with any Person (A) pursuant to which the Company or any of its Subsidiaries (or Parent Redwoods or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events events, in each case, relating to Company Products, or (B) under which the Company or any of its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Company Business Intellectual Property;
(xixii) any Contract (A) for the employment or engagement of any Key Employee of the Company or any of its Subsidiaries, or (B) providing for any Change of Control Payment of the type described in clause (a) of the definition thereof;
(xiii) any Contract (A) executed with any current director, manager, officer, employee, Contingent Worker or other individual service provider of the Company or any of its Subsidiaries that provides for severance benefits, or (B) entered into by the Company or any of its Subsidiaries that constitutes a collective bargaining agreement or any other agreement executed between the Company or its Subsidiary, as applicable, and a union or similar organization;
(xiv) any Contract for the disposition of any material portion of the assets or business of the Company or any of its Subsidiaries or for the acquisition by the Company or any of its Subsidiaries of the material assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course ordinary course of Businessbusiness), or under which the Company or any of its Subsidiaries has any continuing obligation with respect to an “earn-out,” ”, contingent purchase price or other contingent or deferred payment obligation;
(xiixv) any Contract pursuant to which the Company or any of its Subsidiaries (A) obtains any right to use, or covenant not to be sued under, any Intellectual Property Right (other than any license for Off-the-Shelf Software), or (B) grants any right to use, or covenant not to be sued under, any Intellectual Property Right (other than non-exclusive licenses granted in the ordinary course of business consistent with past practice);
(xvi) any settlement, conciliation or similar Contract (A) requiring monetary the performance of which would be reasonably likely to involve any payments by the Company or its Subsidiaries after the date of this AgreementAgreement by the Company or any of its Subsidiaries, (B) with a Governmental Authority Entity or which relates to alleged criminal wrongdoing, (C) that imposes imposes, at any time in the future, any material, non-monetary obligations on the Company or any of its Subsidiaries (or Parent Redwoods or any of its Affiliates after the Closing); and
, or (xiiiD) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of which requires the Company or any of its Subsidiaries to make any payment accept or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or bothconcede material injunctive relief; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from by the Company or any of its Subsidiaries in excess of $300,000 25,000, or (B) aggregate payments to or from by the Company or any of its Subsidiaries in excess of $1,500,000 50,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries Subsidiary, as applicable, without penalty upon less than thirty sixty (3060) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its SubsidiariesSubsidiary, as applicable, and, to the knowledge of the Company’s Knowledge, the counterparties counterparty thereto, and is in full force and effect effect, and enforceable in accordance with its terms against (ii) the Company or and its Subsidiaries and, to the knowledge of the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcythereto, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach ofContract, or default under, any Material Contract by the Company or its Subsidiaries orand, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as knowledge of the date hereof (other than purchase ordersCompany, invoicesthere are no facts or circumstances which would, and similar confirmatory or administrative documents that are ancillary which would reasonably be expected to, lead to the main contractual relationship between the parties to a particular Contract such breach or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)default.
Appears in 1 contract
Sources: Business Combination Agreement (Redwoods Acquisition Corp.)
Material Contracts. (a) Section 3.13(a3.10(a) of the Company Disclosure Schedule contains Letter sets forth a listing true, correct and complete list of the following Contracts (excluding, in each case, (x) any Company Plan, (y) any Contracts filed no less than two Business Days prior to the date hereof as exhibits to all Contracts described forms, reports, schedules, statements and other documents publicly filed with the SEC, and (z) this Agreement) to which the Company or any of its Subsidiaries is a party otherwise bound, in clauses (i) through (xiii) below to whicheach case, as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto)::
(i) any Contract relating that is required to Indebtedness for borrowed money of be filed by the Company or its Subsidiaries or as a material contract pursuant to Item 601(b)(10) of Regulation S-K under the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its SubsidiariesSecurities Act;
(ii) any Contract under which the Company indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or its Subsidiaries is lessee other evidence of Indebtedness or holds or operates, agreement providing for Indebtedness in each case, any tangible property (other than real property), owned by any other Personexcess of $5 million, except for Contracts relating to Indebtedness between the Company and any lease of its Subsidiaries or agreement under which between Subsidiaries of the aggregate annual rental payments do not exceed $500,000Company;
(iii) any Contract under which for the Company sale of any of the Company’s or its Subsidiaries is lessor Subsidiaries’ property or assets (other than sales of inventory, product or permits any third party to hold or operateobsolete equipment in the ordinary course of business) for, in each case, any tangible property (other aggregate consideration of more than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,00015 million;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected is material to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company and its Subsidiaries, taken as a whole, entered into within the past two years in connection with the settlement or its Subsidiaries other resolution of any Action, involving a payment in excess of $1,000,000 over 5 million or any material ongoing requirements or restrictions on the life Company or any of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)its Subsidiaries;
(v) any Government Contract that (A) limits or purports to limit, in any material respect, the freedom of between the Company or 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 operations of Parent or any of its Affiliates after Subsidiaries and any of the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability ten largest customers of the Company or and its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent are municipal Governmental Entities (determined on the basis of revenues received by the Company or any of its Affiliates after Subsidiaries in the Closingfour consecutive fiscal quarter period ended December 31, 2016) (each such Contract, a “Municipal Contract”);
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by containing covenants binding upon the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after Subsidiaries that materially restricts the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) ability of the Company or any of its Subsidiaries to make compete in any payment activity or incur any Liability as a result business of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicableor with any Person in any geographic area, except for any such Contract that may be canceled without penalty by the Company or any of its Subsidiaries upon notice of 60 days or less;
(vii) any Contract that is related to the governance or operation of any joint venture, partnership or similar arrangement, other than any such Contract solely between or among any of the Company and any of its direct or indirect wholly owned Subsidiaries;
(viii) any Contract that by its terms calls for aggregate payments by the Company or any of its Subsidiaries of more than $10 million per annum, except for any such Contract that may be cancelled by the Company, without any material penalty or other liability to the Company or any of its Subsidiaries, upon notice of 90 days or less;
(ix) each material Contract to or by which the Company or any of its Subsidiaries is a party or bound granting a third party any license to Intellectual Property Rights, other than nonexclusive licenses granted in the ordinary course of business consistent with past practice, except for any such Contract that may be canceled without penalty by the Company or any of its Subsidiaries upon notice of 120 days or less;
(x) each material Contract pursuant to which the Company or any of its Subsidiaries has been granted any license to Intellectual Property Rights, other than nonexclusive licenses granted in the ordinary course of business consistent with past practice, except for any such Contract that may be canceled without penalty by the Company or any of its Subsidiaries upon notice of 120 days or less;
(xi) each Contract that would materially impair or limit the Company’s Knowledgeor any of its Subsidiaries’ ability to own, the counterparties theretoenforce, and is in full force and effect and enforceable in accordance with its terms against use, license or disclose any Company Intellectual Property Rights;
(xii) each material Contract between the Company or any of its Subsidiaries and any of the ten largest customers of the Company and its Subsidiaries (determined on the basis of revenues received by the Company or any of its Subsidiaries in the four consecutive fiscal quarter period ended December 31, 2016) (each such customer, a “Major Customer”, and each such Contract, a “Major Customer Contract”);
(xiii) each material Contract between the Company or any of its Subsidiaries and any of the ten largest licensors or other suppliers to the Company and its Subsidiaries (determined on the basis of amounts paid by the Company or any of its Subsidiaries in the four consecutive fiscal quarter period ended December 31, 2016) (each such licensor or other supplier, a “Major Supplier”, and each such Contract, a “Major Supplier Contract”);
(xiv) any Contract under which the Company or any of its Subsidiaries has advanced or loaned an amount of money in excess of $100,000 to any of its current or former directors, officers, employees or consultants; or
(xv) any Contract that would prevent the Company from or materially impair the ability of the Company to perform its obligations under this Agreement in any material respect. Each such contract described in clauses (i) through (xv) is referred to herein as a “Company Material Contract.”
(b) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) neither the Company nor any of its Subsidiaries is (and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement Knowledge of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not no other party is) in material breach of, or default under, under any Company Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).Contract,
Appears in 1 contract
Material Contracts. (a) Section 3.13(aSchedule 4.12 lists the following Contracts (other than (x) purchase orders, (y) Real Property Leases and (z) the Existing Debt Agreements and Existing Forbearances and agreements relating thereto), which are Contracts to which one or more of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as of the date of this Agreement, or the Company or its Subsidiaries is a party that is in effect on the Agreement Date (collectively, together with the Real Property Leases, the Existing Debt Agreements, Existing Forbearances and the Restructuring Support Agreement, the “Material Contracts”):
(i) Contracts which restrict in any material respect or by which they are boundcontain any material limitations on the ability of the Company or the Company Subsidiaries to compete in any material line of business in any geographical territory;
(ii) Contracts, other than Employee Plans, with the Chief Executive Officer of the Business and any employee who reports directly to the Chief Executive Officer;
(iii) Contracts to sell (including an assignment to a third party with respect to Leased Real Property) or otherwise dispose (other than a license or sublicense) of any material asset of the Company Benefit Planor any Company Subsidiary, and other than in the ordinary course of business, which Contracts have obligations that are not expired or have not been terminated satisfied or performed;
(iv) Contracts relating to the acquisition or disposition by the Company or any Company Subsidiary of any operating business, business organization, division or the capital stock of any Person, in each case, for consideration in excess of $500,000 and which acquisition or disposition is pending or was consummated within the last four (4) years;
(v) Contracts with outstanding obligations for the purchase of personal property, fixed assets or real estate having a value individually, with respect to all purchases thereunder, in excess of $100,000 or, together with all related Contracts, in excess of $500,000, in each case, other than purchases in the ordinary course of business consistent with past practices;
(vi) Contracts relating to creating, incurring, assuming or guaranteeing Debt, making any loans or extending credit (other than to customers in the ordinary course of business), granting a Lien on assets, whether tangible or intangible, to secure Debt, in each case, involving amounts in excess of $500,000;
(vii) Contracts, other than the Employee Plans, with the Top Customers and Top Suppliers;
(viii) Contracts pursuant to which a third party has granted to the Company or any Company Subsidiary a license under, or a covenant not including any to ▇▇▇ in respect of, Intellectual Property that is material to the Business, other than (A) agreements relating to commercially available off the shelf computer software; (B) licenses granted by suppliers, vendors or other service providers in the ordinary course of business; and (C) licenses granted by customers and technology partners in the ordinary course of business;
(ix) Contracts pursuant to which the Company or any Company Subsidiary has with no granted to any Person a license under, or a covenant not to ▇▇▇ in respect of, material outstanding or executory obligations or Liabilities Business Intellectual Property, other than (such Contracts as are required to be set forth on Section 3.13(aA) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of intercompany licenses between the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or and (B) other Contract with respect licenses granted to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or customers and technology partners in the aggregate, in an amount in excess ordinary course of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedulebusiness;
(x) any Contract with any Person (A) pursuant to which Contracts between the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its SubsidiariesStockholder, on the other hand, that will not be terminated at or prior to the Closing;
(xivxi) Contracts establishing any Contract with joint venture, partnership or strategic alliance that is material to the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment)Business taken as a whole;
(xvxii) material settlements or other arrangements entered into during the two (2)-year period ending on the Agreement Date with respect to any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or bothAction; and
(xviixiii) Contracts (excluding Contracts with advisors of the Company and the Company Subsidiaries in connection with the Transactions) which have not been made in the ordinary course of business and which have not been disclosed pursuant to any other Contract the performance of which requires either (A) annual payments clause under this Section 4.12 and have resulted in, or are expected to result in, revenue or from the Company or its Subsidiaries require expenditures in excess of $300,000 500,000 in the twelve (12) month period ending on October 2, 2020 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeany subsequent calendar year.
(ib) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and represents the legal, valid and binding obligation of the Company or the Company Subsidiary(ies) party thereto, as the case may be, and, to the knowledge of the Company, each other party to such Material Contract, and is enforceable against the Company or the applicable Company Subsidiary, as the case may be, and, to the knowledge of the Company, each other party to such Material Contract, in accordance with its terms against the Company or its Subsidiaries andterms, subject, in each case, to the Company’s Knowledge, the counterparties thereto Bankruptcy and Equity Exception.
(subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (iic) Neither the Company nor any Company Subsidiary has delivered any notice of any default or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or bothboth would constitute a default by a third party under any Material Contract, except for defaults that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(d) Since January 31, 2020, neither the Company nor any Company Subsidiary has received any written or oral claim or notice of material breach of or material default under any Material Contract.
(e) To the knowledge of the Company, no event has occurred which, individually or together with other events, would reasonably be expected to result in a material breach of, of or a material default under, under any Material Contract by the Company or its Subsidiaries orany Company Subsidiary.
(f) Since January 31, 2020, neither the Company nor any Company Subsidiary has received written notice from a third party under any Material Contract that such party intends to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all terminate or not renew any such Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Contract.
Appears in 1 contract
Material Contracts. (a) Section 3.13(a4.07(a) of the Company Disclosure Schedule contains Schedules lists a listing true, complete and correct list of all Contracts described in clauses (i) through (xiii) below to which, as each of the date following Contracts, by reference to the applicable subsection of this AgreementSection 4.07(a), (other than Contracts valued at less than $1,000 annually for off-the-shelf software or uncustomized software commercially available to the Company public generally) (x) by which any of the Purchased Assets are bound or its Subsidiaries affected or (y) to which any Lawn and Garden Entity is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired it is bound in connection with the Business or have not been terminated and not including any Contracts pursuant to which the Company has Purchased Assets (together with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on all Tangible Personal Property Leases listed in Section 3.13(a4.08(d) of the Company Disclosure ScheduleSchedules, Leases listed in Section 4.11(b) of the Disclosure Schedules, all Intellectual Property Licenses listed in Section 4.12(a) of the Disclosure Schedules and all Permits listed in Section 4.14(c) of the Disclosure Schedules collectively, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) all Contracts involving aggregate consideration in excess of $100,000 or requiring performance by any Contract relating to Indebtedness for borrowed money of party more than one year from the Company Original Agreement Date, which, in each case, cannot be cancelled without penalty or its Subsidiaries or to the placing of a Lien without more than thirty (other than a Permitted Lien30) on any material assets or properties of the Company or its Subsidiariesdays’ notice;
(ii) all Contracts that relate to the sale of any Contract under of the Purchased Assets or to which the Company or its Subsidiaries an Acquired Subsidiary is lessee of or holds or operatesa party to, in each case, any tangible property (other than real property)in the Ordinary Course of Business, owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed consideration in excess of $500,000100,000;
(iii) all Contracts with any Contract under which the Company Largest Customer or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000Largest Supplier;
(iv) all Contracts for the purchase by any (A) joint ventureLawn and Garden Entity in connection with the Business of goods, profit-sharingservices, partnershipmaterials, collaborationsupplies or equipment, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries for consideration in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts)100,000;
(v) all Contracts for the sale or delivery by any Contract Lawn and Garden Entity in connection with the Business of goods, services, materials, supplies or equipment that (A) limits or purports involves future payments to limit, in any material respect, the freedom of the Company or its Subsidiaries Lawn and Garden Entity that are expected 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closingexceed $100,000;
(vi) all Contracts that relate to the acquisition of any Contract requiring business, a material amount of stock or assets of any future capital commitment other Person or capital expenditure any real property (whether by merger, sale of stock, sale of assets or series of capital expenditures) by the Company or its Subsidiaries otherwise), in an amount each case involving amounts in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement50,000;
(vii) all Contracts containing any Contract requiring the Company confidentiality, non-competition or its Subsidiaries to guarantee the Liabilities of non-solicitation obligations imposed on or by any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000Lawn and Garden Entity;
(viii) all Contracts containing any Contract under which the Company form of “most favored nations” clauses or its Subsidiaries hasany exclusivity provisions or similar provisions;
(ix) all Contracts imposing any minimum volume, directly purchase, production or indirectly, made or agreed similar obligations on any Lawn and Garden Entity;
(x) all Contracts with any Governmental Authority;
(xi) all Contracts granting a power of attorney to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ixxii) any Contract required to be disclosed on Section 3.19 all Contracts for joint ventures, strategic alliances, partnerships, licensing arrangements, or sharing of the Company Disclosure Scheduleprofits or confidential information;
(xxiii) except for agreements relating to trade receivables, all Contracts relating to Indebtedness (including, without limitation, guarantees) or the creation of any Contract Encumbrance upon the Purchased Assets or any assets of the Acquired Subsidiaries other than Permitted Encumbrance;
(xiv) all Contracts between or among a Lawn and Garden Entity on the one hand and any Affiliate of such Lawn and Garden Entity on the other hand, including all Contracts with Related Persons; all collective bargaining agreements or Contracts with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestoneslabor organization, royalties union or other contingent payments based on any researchassociation of employees;
(xv) all Contracts providing for severance, testingretention, development, regulatory filings or approval, sale, distribution, commercial manufacture change in control or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Propertypayments;
(xixvi) any Contract all Contracts for the disposition employment or engagement of any portion of the assets Person as an Employee or business of the Company Independent Contractor on a full-time, part-time or its Subsidiaries consulting or for the acquisition by the Company other basis including any non-competition, non-solicitation, or its Subsidiaries of the assets or business of non-disclosure agreement entered into between any other Person Lawn and Garden Entity and any Employee;
(other than acquisitions or dispositions xvii) all original purchase price conditional sales Contracts and equipment leases with third parties;
(xviii) all Contracts not made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiiixix) each collective bargaining agreement or other Contract with all Contracts Related to the Company or its Subsidiaries, on the one hand, Business otherwise material to any Lawn and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;Garden Entity.
(xivb) any Contract with the Company or its Subsidiaries, Except as set forth on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingentSection 4.07(b) of the Company Disclosure Schedules, no Lawn and Garden Entity is in breach of, or default under, any of its Subsidiaries to make Material Contract, except for such breaches or defaults that would not have a material and adverse effect on any payment Acquired Subsidiary, the Business or incur any Liability as a result the Purchased Assets.
(c) Each of the Material Contracts is in full force and effect and is the legal, valid and binding obligation of the Lawn and Garden Entities, as applicable, and to Sellers’ Knowledge, the other parties thereto, enforceable against each of them in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a Legal Proceeding at law or in equity) and, upon consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is shall continue in full force and effect without penalty or adverse consequence. Except for the items specified on Exhibit K hereof, no Lawn and enforceable Garden Entity is in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, under any Material Contract nor, to Sellers’ Knowledge, is any other party to any Material Contract in breach or default hereunder, and (iii) no event has occurred that (with or without due notice or the lapse of time or both) the giving of notice or both would result in constitute a material breach of, or default underby any Lawn and Garden Entity, any Material Contract by the Company or its Subsidiaries or, to the Company’s Sellers’ Knowledge, the counterparties theretoany other party thereunder. The Company has made available Sellers have delivered to Parent true Buyer true, correct and complete copies of all Material Contracts in effect as of the date hereof (other than purchase ordersMaterial Contracts, invoices, together with all amendments and similar confirmatory modifications or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)supplements thereto.
Appears in 1 contract
Material Contracts. (a) Except (i) as set forth on Section 3.13(a2.19(a) of the Company O-I Disclosure Schedule contains a listing of all (collectively, "Material Contracts" and, together with the Additional Material Contracts described in clauses (ias defined below), the "Company Material Contracts"), (ii) through (xiii) below to which, as of the date of for this Agreement, any Foreign Subsidiary Purchase Agreement and any agreements necessary to effect the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, Corporate Restructuring and that are not expired or have not been terminated the Australia Restructuring and not including any Contracts pursuant to which (iii) for agreements entered into following the Company has date hereof in the ordinary course of business consistent with no material outstanding or executory obligations or Liabilities past practice (such Contracts as are agreements, to the extent they would be required to be set forth on Section 3.13(a2.19(a) of the Company O-I Disclosure ScheduleSchedule if they were in effect on the date hereof, the “"Additional Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property"), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) none of the Company or any of its Subsidiaries is a party to make or bound by, nor are any payment of their properties or incur any Liability as a result of assets or the consummation of the transactions contemplated Business affected by this Agreement, termination of employment or both; andany:
(xviii) loan agreement, note, mortgage, security agreement or indenture relating to the borrowing of money or to the mortgaging or pledging of any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement andassets, in each case, that is not terminable by pursuant to which the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and outstanding indebtedness is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement excess of creditors’ rights and subject to general principles of equity), $1,000,000;
(ii) the Company or its Subsidiaries and, agreement with respect to the Company’s Knowledge, the counterparties thereto are not lending or investing of funds in material breach of, or default under, any Material Contract and excess of $1,000,000;
(iii) no event has occurred that guaranty of any obligation for borrowed money or otherwise in excess of $1,000,000, other than endorsements made for collection in the ordinary course of business consistent with past practice;
(with iv) indemnification or without due notice other reimbursement obligation in excess of $1,000,000;
(v) license or lapse of time royalty agreement involving annual payments in 2003 or both) would result in a material breach of, or default under, any Material Contract 2004 by the Company or any of its Subsidiaries orto third parties of more than $1,000,000;
(vi) vendor or supply agreement pursuant to which the Company or one of its Subsidiaries makes purchases involving the payment of $1,000,000 or more in any 12 consecutive month period, which agreements have a remaining term of one year or more;
(vii) contract that prohibits the Company or any of its Subsidiaries from freely engaging in any business in any geographic region or from competing with any Person;
(viii) agreement (other than this Agreement and the Additional Agreements) relating to the Company’s Knowledgeacquisition or disposition of any Person (whether by merger, sale of stock, sale of assets or otherwise);
(ix) employment contract providing for annual base salary and bonus in excess of $200,000 with respect to any employee of the counterparties thereto. The Company has made available or any Subsidiary;
(x) Collective Bargaining Agreement or similar contract with any labor union, works council or other labor organization relating to Parent true wages, hours and complete copies other conditions of all Material Contracts employment in effect as of the date hereof hereof;
(xi) any agreement with respect to any hedging, swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions;
(xii) partnership, limited liability company, joint venture agreement or other than purchase ordersagreement involving a sharing of profits or expenses;
(xiii) any other contract not described above that involves the payment by, invoicesor liability of, and similar confirmatory the Company or administrative documents any of its Subsidiaries of $1,500,000 or more in any 12 consecutive month period or $4,000,000 in the aggregate; and
(xiv) any other contract not described above that are ancillary involves the payment to the main contractual relationship between Company or any of its Subsidiaries of $1,500,000 or more in any 12 consecutive month period or $4,000,000 in the parties aggregate.
(i) Except as set forth on Section 2.19(b)(i) of the O-I Disclosure Schedule, each Material Contract and, when executed and delivered, each Additional Material Contract the subject of which is covered by Sections 2.19(a)(i)-2.19(a)(xiii) (the "Other Material Contracts"), is or will be valid, binding and enforceable in all material respects against the Company or, if any Subsidiary of the Company is the party to a particular Contract or group such Other Material Contract, such Subsidiary and to the Knowledge of Contracts and thatthe O-I Parties, each other party thereto, in each case, do not contain any material executory or continuing in accordance with their respective terms, conditions(ii) except as set forth on Section 2.19(b)(ii) of the O-I Disclosure Schedule, each of the Company and its Subsidiaries has performed all material obligations under the Other Material Contracts required to be performed by it and the Company and each of its Subsidiaries is not in default, has not received any written notice or rightsclaim of default under any Other Material Contract and to the Knowledge of the O-I Parties each other party thereto has performed all material obligations under the Other Material Contracts required to be performed by it and (iii) except as set forth on Section 2.19(b)(iii) of the O-I Disclosure Schedule, none of the Company or any of its Subsidiaries is in material breach of any Other Material Contract and to the Knowledge of the O-I Parties each other party to any Other Material Contract is not in material breach of any Other Material Contract. Except as set forth on Section 2.19(b)(iv) of the O-I Disclosure Schedule, Seller has made available to Buyer true, correct and complete copies of each Material Contract and, prior to the Closing, Seller shall have delivered to Buyer true, correct and complete copies of each Additional Material Contract.
(c) Section 2.19(c)(i) of the O-I Disclosure Schedule sets forth a true, complete and correct list of each agreement or contract that involves the payment to the Company or any of its Subsidiaries of $1,500,000 or more in any 12 consecutive month period or $4,000,000 in the aggregate (each, a "Significant Agreement") that has been duly executed and delivered by the parties thereto (collectively, the "Executed Material Agreements"). Each Executed Material Agreement is valid, binding and enforceable in all material respects against the Company or, if any Subsidiary of the Company is the party to such Executed Material Agreement, such Subsidiary and, to the Knowledge of the O-I Parties, each other party thereto, in each case, in accordance with its respective terms. Except as set forth on Section 2.19(c)(ii) of the O-I Disclosure Schedule, each of the Company and its Subsidiaries has performed all of its material obligations under the Executed Material Agreements required to be performed by it and none of the Company or any of its Subsidiaries is in default or breach, or has received any written notice or claim of default or breach, under any Executed Material Agreement and to the Knowledge of the O-I Parties each other party thereto has performed all of its material obligations under the Executed Material Agreements required to be performed by it and is not in default or breach thereunder. Except as set forth on Section 2.19(c)(iii) of the O-I Disclosure Schedule, Seller has made available to Buyer true, correct and complete copies of each Executed Material Agreement.
(d) Section 2.19(d)(i) of the O-I Disclosure Schedule sets forth a true, complete and correct list of each Significant Agreement that has not been duly executed and delivered by all of the parties thereto (the "Unexecuted Material Agreements"). Section 2.19(d)(i) of the O-I Disclosure Schedule sets forth a summary of all material terms and conditions of business as currently conducted between the Company or a Subsidiary of the Company, as the case may be, and the third party to such Unexecuted Material Agreements (the "Unexecuted Material Agreement Summaries"). The Unexecuted Material Agreement Summaries are true, complete and accurate in all material respects.
(e) Section 2.19(e)(i) of the O-I Disclosure Schedule sets forth a true, complete and correct list of each Executed Material Agreement that is subject to confidentiality provisions prohibiting disclosure to Buyer (the "Executed Material Confidential Agreements"). O-I has in its possession true, complete and correct copies of the Executed Material Confidential Agreements and upon notification from the relevant third party to such Executed Material Confidential Agreement that the confidentiality provision has been waived with respect to a review of such agreement by Buyer, will deliver true, complete and correct copies of the Executed Material Confidential Agreements to Buyer. Section 2.19(e)(ii) of the O-I Disclosure Schedule sets forth a summary of terms of the Executed Material Confidential Agreements (the "Executed Material Confidential Summaries"). The Executed Material Confidential Summaries are true, complete and accurate in all material respects. Except as set forth on Section 2.19(e)(iii) of the O-I Disclosure Schedule, each of the Company and its Subsidiaries has performed all of its material obligations under the Executed Material Confidential Agreements required to be performed by it and none of the Company or any of its Subsidiaries is in default or breach, or has received any written notice or claim of default or breach, under any Executed Material Confidential Agreement and to the Knowledge of the O-I Parties each other party thereto has performed all of its material obligations under the Executed Material Confidential Agreements required to be performed by it and is not in default or breach thereunder.
(f) Section 2.19(f)(i) of the O-I Disclosure Schedule sets forth a true, complete and correct list of each Unexecuted Material Agreement that is subject to confidentiality provisions prohibiting disclosure to Buyer (the "Unexecuted Material Confidential Agreements"). O-I has in its possession true, complete and correct copies of the Unexecuted Material Confidential Agreements and upon notification from the relevant third party to such Unexecuted Material Confidential Agreement that the confidentiality provision has been waived with respect to a review of such agreement by Buyer, will deliver true, complete and correct copies of the Unexecuted Material Confidential Agreements to Buyer. Section 2.19(f)(ii) of the O-I Disclosure Schedule sets forth a summary of terms and conditions of business as currently conducted between the Company or a Subsidiary of the Company, as the case may, and the third party to such Unexecuted Material Confidential Agreements (the "Unexecuted Material Confidential Agreement Summaries"). The Unexecuted Material Confidential Summaries are true, complete and accurate in all material respects.
Appears in 1 contract
Sources: Stock Purchase Agreement (Graham Packaging Holdings Co)
Material Contracts. (a) Section 3.13(a4.8(a) of the Company Disclosure Schedule contains a listing of all lists the following respective Contracts described (other than any Company Plan or Company Equity Plan) in clauses (i) through (xiii) below to which, effect as of the date hereof (which shall be deemed to include all then-current material amendments, modifications and supplements whether or not specifically referenced thereon, provided that such material amendments, modifications and supplements were made available to Parent prior to the date of this Agreement) to which the Company or any of its Subsidiaries is a party (provided, however, that Section 4.8(a) of the Company Disclosure Schedule will be deemed to include, without requirement of listing, any “material contract” (as such term is used in Item 601(b)(10) of Regulation S-K of the SEC) that is filed as an exhibit to any of the SEC Reports filed with the SEC prior to the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a any Company Benefit Plan or Company Equity Plan), and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on in Section 3.13(a4.8(a) of the Company Disclosure Schedule, together with the Real Property Leases and any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) collectively being, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto)::
(i) any Contract relating to Indebtedness for borrowed money all Contracts (excluding purchase orders issued in the ordinary course of business) under which the Company or any of its Subsidiaries or was obligated to make purchases in excess of $20,000,000 during the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries12-month period ended March 31, 2019;
(ii) any Contract under which all Contracts (excluding purchase orders issued in the ordinary course of business) involving a customer or a distributor and that required payments to, or receipts by, the Company or its Subsidiaries is lessee any of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over 20,000,000 during the life 12-month period ended March 31, 2019;
(iii) all material Contracts to which any Governmental Authority is a party or any material subcontract (at any tier) that to the Knowledge of the Contract Company is for the purpose of fulfilling a contract or order from a Governmental Authority as the ultimate customer;
(iv) all Contracts that (A) materially limit or purport to materially limit the ability of the Company or any of its Subsidiaries, and, which upon the consummation of the Merger would materially limit or purport to materially limit the ability of Parent or any Subsidiary of Parent, to compete with any Person, in any line of business or sell, supply or distribute any product or service, in each case, in any geographic area, during any period of time or (B) other Contract with respect subject the Company or any of its Subsidiaries and, which upon the consummation of the Merger would subject the Parent or any of its Subsidiaries, to any material Company Licensed Intellectual Property (other than any Non“most-Scheduled Contracts)favored nation” pricing right, exclusivity or similar obligation;
(v) any Contract that (A) limits providing for the disposition or purports to limit, in any material respect, the freedom of acquisition by the Company or 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 operations of Parent or any of its Affiliates after Subsidiaries directly or indirectly (by merger, license or otherwise) of assets or equity ownership interests for consideration in excess of $35,000,000 (other than acquisitions of inventory in the Closingordinary course of business consistent with past practice) or containing other material “earn-out” provisions or other material contingent payment obligations;
(vi) any mortgages, indentures, guarantees, loans, credit agreements, security agreements or other Contracts in excess of $50,000,000 relating to indebtedness, other than (A) accounts receivables and payables and (B) contains any exclusivity, “most favored nation” loans to or similar provisions, obligations guarantees for direct or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability indirect wholly owned Subsidiaries of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customerCompany, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any the ordinary course of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreementbusiness consistent with past practice;
(vii) any Contract requiring all Contracts establishing or otherwise providing for revenue or profit-sharing joint ventures (whether in partnership, limited liability company or other organizational form) that resulted in revenues for the Company or any of its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,00010,000,000 during the 12-month period ended March 31, 2019;
(viii) any Contract under which the Company all Contracts (excluding licenses for commercially available computer components or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed software that is generally available on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (Bnondiscriminatory pricing terms) under which the Company or any of its Subsidiaries grants to is granted any Person any right of first refusal, right of first negotiationlicense, option or other right or immunity (including a covenant not to purchase, option be sued or right to license enforce or prosecute any other similar rights Patents) with respect to any material Intellectual Property of a third party (including any that is embodied in or necessary for the use of any Company Product as of the date of this Agreement) and which Contract is (i) material to the Company and its Subsidiaries, taken as a whole or (ii) includes any material Intellectual Propertyexclusive license or other similar exclusive right;
(xiix) any Contract for the disposition all Contracts (excluding non-exclusive licenses relating to sales of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made Products in the Ordinary Course ordinary course of Business), business or licenses for commercially available computer components or software that is generally available on nondiscriminatory pricing terms) under which the Company or any of its Subsidiaries has granted to a third party any continuing obligation 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 an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) Intellectual Property of the Company or any of its Subsidiaries and which Contract (i) is material to make any payment or incur any Liability the Company and its Subsidiaries, taken as a result whole or (ii) includes any exclusive license or other similar exclusive right;
(x) all Contracts that are not included in the foregoing Sections 4.8(a)(viii) or 4.8(a)(ix) (or in the exclusions identified in such clauses) that restrict the Company’s or any of its Subsidiaries’ rights with respect to Intellectual Property in a manner that is material to the consummation Company and its Subsidiaries, taken as a whole;
(xi) all Contracts entered into since December 31, 2016, in connection with the settlement or other resolution of any legal action that has any material continuing obligation, liability or restriction on the transactions contemplated by this Agreement, termination part of employment or bothwhich operates against the Company or any of its Subsidiaries; and
(xviixii) any other Contract all Contracts that are not included in the performance of foregoing Sections 4.8(a)(i) or 4.8(a)(ii) (or in the exclusions identified in such clauses) under which requires either (A) annual payments to or from the Company or and its Subsidiaries are obligated to make or receive payments in excess of $300,000 or (B) 25,000,000 in the aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticefiscal year 2019.
(b) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (i) Each each Material Contract is a legal, valid and binding on the Company or its Subsidiaries, as applicableagreement, to the Knowledge of the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights Bankruptcy and subject to general principles of equityEquity Exception), (ii) the Company or its Subsidiaries andapplicable Subsidiary, as the case may be, is not in default under any Material Contract, has not committed or failed to perform any act that, with or without notice, lapse of time, or both, would constitute a default under the Material Contract and (iii) to the Knowledge of the Company’s Knowledge, the counterparties thereto are not no other party is in material breach or violation of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse Contract. As of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledgedate of this Agreement, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase ordersContracts, invoicesincluding any material amendments, modifications and similar confirmatory or administrative documents that are ancillary supplements thereto to the main contractual relationship between extent available in the parties to a particular Contract or group of Contracts Company’s and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)its Subsidiaries’ books and records.
Appears in 1 contract
Material Contracts. (a) Except as set forth in Section 3.13(a3.01(m) of the Company Aztar Disclosure Schedule contains Letter, neither Aztar nor any of its subsidiaries is a listing party to or bound by, as of the date hereof, any of the following (whether or not in writing), collectively with all exhibits and schedules to such Contracts:
(i) any agreement or series of related agreement providing for the acquisition or disposition of securities of any person or any assets, in each case involving more than $1,000,000 individually or in the aggregate, other than in the ordinary course of business consistent with past practice or in connection with the capital expenditure budgets included in Section 4.01(a)(xi) of the Aztar Disclosure Letter;
(ii) any Contract that imposes payment, cancellation penalties or other obligations in connection with the redevelopment or future operation (other than ordinary course hotel operations) of all or any portion of Aztar's property, facility or operations in Las Vegas, Nevada (the "Las Vegas Site");
(iii) any Contract or commitment relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset) in excess of $1,000,000; and
(iv) any Contract that would be required to be filed as an exhibit to an Annual Report on Form 10-K pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act; (the Contracts described in clauses (i) through - (xiiiiv), together with all exhibits and schedules to such Contracts, being the "Material Contracts"). A true and complete copy of each Material Contract has previously been delivered or made available to Columbia. Except as individually or in the aggregate has not had and would not reasonably be expected to have a material adverse effect on Aztar, each Contract by which Aztar or its subsidiaries is bound is a valid and binding agreement of Aztar or one of its subsidiaries enforceable against Aztar or one of its subsidiaries, and, to the knowledge of Aztar, the counterparties thereto in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or affecting creditors rights generally and to equitable principles (whether considered in a proceeding at law or in equity). Aztar and its subsidiaries are not (and to the knowledge of Aztar, no counterparty is) below to in breach or violation of or in default in the performance or observance of any term or provision of, and no event has occurred which, as with lapse of the date time or action by a third party or Aztar, would result in a default under, any Contract to which Aztar or any of this Agreement, the Company or its Subsidiaries subsidiaries is a party or by which they are boundany of them is bound or to which any of their property is subject, other than a Company Benefit Planbreaches, violations and that are not expired or defaults which have not been terminated had and would not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business orexpected, individually or in the aggregate, in an amount in excess to have a material adverse effect on Aztar. The execution, delivery and performance of $200,000 this Agreement by Aztar do not, and the consummation by Aztar of the Merger and the compliance by Aztar with the provisions of this Agreement will not, constitute or made any capital contribution to, or other investment result in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or notice, lapse of time or both) would result in , a material breach or violation of, or a material default under, or the creation of a Lien on any Material Contract by of the Company assets of Aztar or any of its Subsidiaries or, subsidiaries pursuant to the Company’s Knowledge, Pinnacle Agreement. Aztar has in all material respects complied with its obligations under the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoicesPinnacle Agreement, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between Pinnacle Agreement has been terminated in accordance with the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)terms thereof.
Appears in 1 contract
Sources: Merger Agreement (Aztar Corp)
Material Contracts. (a) Section 3.13(aSchedule 4.11(a) lists all of the following Contracts to which any of the Acquired Companies is a party or by which it or its assets are bound (collectively, but excluding Real Estate Leases and Software Licenses, the "Material Contracts"):
(i) each Contract (excluding purchase orders) that resulted in aggregate monetary payments by any Acquired Company to a third party during the most recently completed fiscal year of the Company Disclosure Schedule or that contains a listing commitment by any of all Contracts described the Acquired Companies to make aggregate monetary payments to a third party during the fiscal year ending December 31, 2018, in clauses each case in an amount exceeding $200,000; provided, however, that a Contract that would otherwise be classified as a Material Contract pursuant to this Section 4.11(a)(i) shall not be so classified if such Contract may be terminated by the Acquired Company without penalty or premium upon notice of not more than 45 days;
(iii) through each Contract or purchase order that resulted in monetary receipts by any Acquired Company during the most recently completed fiscal year and the current fiscal year of the Company in an amount exceeding $200,000;
(xiiiiii) below each Contract granting royalties or similar payments to whicha third party;
(iv) each Contract that purports to limit the freedom of any of the Acquired Companies to compete in any line of business, to conduct business in any geographic location or to freely engage in the Business anywhere in the world;
(v) each Contract in excess of $200,000 that is for the purchase or sale of goods or services and has not been substantially completed by the Acquired Companies as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any each Contract requiring any future capital commitment constituting a partnership, joint venture, collaboration, strategic alliance or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreementother similar Contract;
(vii) any each Contract requiring that provides for the Company or its Subsidiaries to guarantee incurrence of Indebtedness of the Liabilities Acquired Companies, the guaranty of Indebtedness of any Person (other than the by any Acquired Company or a Subsidiary) or pursuant otherwise relating to which any Person (other than Indebtedness of the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000Acquired Companies;
(viii) any each Contract under which the Company between one or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside more of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its SubsidiariesAcquired Companies, on the one hand, and any labor union, labor organization or works council representing employees Affiliate of the Company Acquired Companies or its Subsidiariespresent or former employee of the Acquired Companies, on the other hand;
hand (xiv) including any Contract providing for (A) compensation or the acceleration of benefits in connection with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination Agreement or (B) the indemnification of employment such Affiliate or both; andEmployee by the Acquired Companies);
(xviiix) any other each Government Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries with total consideration in excess of $300,000 100,000;
(x) each Contract relating to the acquisition, sale, disposition or lease of all or a material portion of any operating business, assets or Equity Interests of another Person, including the Acquired Companies (whether by merger or otherwise), entered into in the last three (3) years;
(xi) each Contract that (A) contains most favored customer pricing provisions with any third party or (B) aggregate payments grants any exclusive rights, rights of first refusal or rights of first negotiation;
(xii) each Contract pursuant to which any Acquired Company purchases goods or from services (other than on a purchase order basis) that is a Contract with a mandatory take or pay or similar purchase requirement for all or a portion of such Acquired Company's purchase obligations with respect to such good or service;
(xiii) each Contract that is a settlement, conciliation, covenant not to ▇▇▇, concurrent use, consent to use, or similar agreement or pursuant to which any Acquired Company has any monetary or other material obligation after the Company or its Subsidiaries in excess date of $1,500,000 over this Agreement;
(xiv) each Contract (A) relating to the life grant of rights to any Intellectual Property that is material to the conduct of the agreement andBusiness, including any Contracts relating to the licensing of material Intellectual Property by or to any of the Acquired Companies (other than implied licenses granted in the Ordinary Course of Business) or (B) affecting any of the Acquired Companies' abilities to own, enforce, use, license, or disclose any, or providing for the development or acquisition of, any Intellectual Property material to the conduct of the Business, excluding, in each case, Software Licenses;
(xv) each Contract containing any capital expenditure obligations after the date of this Agreement in excess of $100,000, individually;
(xvi) each Contract providing for the provision of services to any Acquired Company by any Person on a consulting or independent contractor basis and providing for annual compensation in excess of $150,000 (other than arrangements in the Ordinary Course of Business that is not are terminable by the applicable Acquired Companies at any time for any (or no) reason without penalty);
(xvii) each Contract relating to Transaction Expenses defined in clauses (i), (ii) or (iii) of the definition of Transaction Expenses (other than Contracts relating to payroll taxes);
(xviii) each Contract (other than customer or vendor agreements entered into in the Ordinary Course of Business) containing material indemnification or other contingent payment obligations;
(xix) each Contract under which an Acquired Company has advanced or its Subsidiaries without penalty upon less than thirty loaned any other Person amounts exceeding $100,000;
(30xx) days’ prior written noticeeach material power of attorney or other agency agreement; and
(xxi) each Contract solely between or among Acquired Companies.
(b) Seller has made available to Buyer true and complete copies of each Material Contract, together with all amendments, modifications or supplements thereto. As of the date hereof: (i) Each each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against is the Company or its Subsidiaries legal, valid and binding obligation of the Acquired Companies and, to the Company’s Seller's Knowledge, the counterparties thereto (other parties thereto, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity)Enforceability Exceptions, (ii) the Company or its Subsidiaries and, each Material Contract has not been terminated (and to the Company’s Seller's Knowledge, no party to any of the counterparties thereto Material Contracts has exercised any termination rights with respect thereto), and the Acquired Companies are not in material breach ofor default thereunder, and, to Seller's Knowledge, no event has occurred or circumstance exists which, with the delivery of notice, the passage of time or both, would constitute such a material breach or default, or default underpermit a termination, any modification or acceleration under such Material Contract and (iii) to Seller's Knowledge, no event has occurred that (with or without due notice or lapse of time or both) would result other party to any such Material Contract is in a material breach of, or material default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)thereof.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Natural Resource Partners Lp)
Material Contracts. (a) Except as set forth in Section 3.13(a3.12(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to whichSchedule, as of the date of this Agreement, neither the Company or nor any of its Subsidiaries is a party to or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):bound by:
(i) any Contract Contracts entered into since January 1, 2014 relating to Indebtedness for borrowed money the acquisition (by merger, purchase of stock or assets or otherwise) by the Company or any of its Subsidiaries of any operating business or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties the capital stock of any other Person;
(ii) any Contracts that are reasonably likely to require payments to or from the Company and its Subsidiaries of more than $250,000, individually for the remaining term of such Contract if the remaining term is less than three months, or $750,000, in the aggregate over a three month period for any individual Contract, in each case other than on a purchase order basis or with respect to any professional services provided to the Company or its Subsidiaries;
(iiiii) any Contract under which partnership, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture of the Company or its Subsidiaries is lessee any of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization Contract involving the payment or research receipt of royalties calculated based upon the revenues or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from income of the Company or its Subsidiaries in excess of $1,000,000 over the life or income or revenues related to any product of the Contract Company or (B) other Contract with respect to material Company Licensed Intellectual Property (its Subsidiaries other than any Nonpursuant to non-Scheduled Contracts)exclusive licenses granted in the ordinary course of business pursuant to standard terms that previously have been provided to Parent;
(v) any non-competition Contract or other Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, either the type of business in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or or, after the Effective Time, Parent or its Subsidiaries) may engage or the manner or locations in which any of its Affiliates after the Closing) is or them may be required to pay milestonesso engage in any business, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for could require the disposition of any portion of the material assets or line of business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business)or, or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this AgreementEffective Time, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on (C) grants “most favored nation” status that, following the one handMerger, would apply to Parent and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with including the Company or and its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xvD) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of requires the Company or any of its Subsidiaries to make deal exclusively with any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract Person or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).related Persons or
Appears in 1 contract
Material Contracts. (a) Section 3.13(a4.08(a) of the Company Sellers’ Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as Letter lists each of the date of this Agreement, following Contracts to which the Company or its Subsidiaries any Company Subsidiary is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities is otherwise bound (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the being “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) each Contract (other than FLUIDCARE Contracts) involving aggregate consideration in excess of $1,500,000 and requiring performance by any party more than one (1) year from the effective date of such Contract relating to Indebtedness for borrowed money of and which cannot be cancelled by the Company or its Subsidiaries the Company Subsidiary without penalty on less than thirty (30) days’ notice, it being understood that, solely for purposes of preparing Section 4.08(a)(i) of the Sellers’ Disclosure Letter, such schedule shall list such Contracts on a “de-identified” basis;
(ii) each FLUIDCARE Contract involving aggregate consideration in excess of $1,000,000 and requiring performance by any party more than one (1) year from the effective date of such Contract and which cannot be cancelled by the Company or the Company Subsidiary without penalty on less than thirty (30) days’ notice, it being understood that, solely for purposes of preparing Section 4.08(a)(ii) of the Sellers’ Disclosure Letter, such schedule shall be limited to the placing top 15 FLUIDCARE Contracts by aggregate consideration and shall list such Contracts on a “de-identified” basis;
(iii) all Contracts that require the Company or any Company Subsidiary to purchase its total requirements of any product or service from a Lien third party or that contain “take or pay” provisions, it being understood that, solely for purposes of preparing Section 4.08(a)(iii) of the Sellers’ Disclosure Letter, such schedule shall list such Contracts on a “de-identified” basis;
(iv) all Contracts that provide for the assumption of any Tax Liability of any Person;
(v) each Contract entered into within the last three (3) years for the sale of any of the Equity Interests or, other than a Permitted Lien) on in the ordinary course of business consistent with past practice, any of the material assets or properties of the Company, any Company Subsidiary or its Subsidiariesany other Person (whether by merger, sale of equity, sale of assets or otherwise) or, for the grant to any Person of any option, right of first refusal or preferential or similar right to purchase any such assets, properties or securities;
(iivi) any Contract under all agency and distribution Contracts that involve consideration in excess of $1,000,000 per annum and which cannot be cancelled by the Company or its Subsidiaries is lessee the Company Subsidiary without penalty, losses or damages on less than thirty (30) days’ notice, it being understood that, solely for purposes of preparing Section 4.08(a)(vi) of the Sellers’ Disclosure Letter, such schedule shall list such Contracts on a “de-identified” basis;
(vii) all employment, severance, change of control, retention or holds other agreements with current or operatesformer employees, in each caseofficers or directors, any tangible property which, unless otherwise required by application Law, are not cancellable without penalty on less than thirty (30) days’ notice (other than real propertythe payment of severance not in excess of that provided under the severance policies disclosed in 4.19(a)(i)–(iii), owned by if any, of the Sellers’ Disclosure Letter), it being understood that, solely for purposes of preparing Section 4.08(a)(vii) of the Sellers’ Disclosure Letter, such schedule shall list such Contracts on a “de-identified” basis;
(viii) all Contracts relating to Indebtedness to or of the Company or any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed Company Subsidiary in excess of $500,000;
(iiiix) all Contracts with any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the Governmental Authority involving aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries consideration in excess of $1,000,000 over the life of the Contract or 500,000 (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled “Government Contracts”);
(vx) any Contract all Contracts that (A) limits limit or purports purport to limit, in any material respect, limit the freedom ability of the Company or its Subsidiaries any Company Subsidiary to engage or compete in any line of business or with any Person or in any geographic area or that would so limit during any period of time or purport sell or purchase from any other Person;
(xi) [Intentionally Omitted]
(xii) all collective bargaining agreements or Contracts with any Union;
(xiii) each partnership, joint venture, joint operating agreement or similar Contract, including any Contract involving a sharing of profits, losses, costs, or Liabilities, and each agreement granting any Person the right to limitissue instructions to the management of a Company Subsidiary, in any material respect, by the operations of Parent Company or any Company Subsidiary with any other Person;
(xiv) each Contract related to or creating an Encumbrance (other than a Permitted Encumbrance or equipment leases that are not in excess of its Affiliates after $1,000,000) of any nature relating to or affecting any of the ClosingCompany’s or any Company Subsidiary’s material assets or the Real Property and all Contracts relating thereto;
(xv) each Contract granting a power of attorney to an unaffiliated third party with respect to any business of the Company or any Company Subsidiary other than in the ordinary course of business consistent with past practice;
(xvi) each Contract under which the consequences of a default or termination would reasonably be expected to have a Material Adverse Effect;
(xvii) each Contract in excess of $1,000,000 that provides any customer of the Company or any Company Subsidiary with pricing discounts or benefits that change based on the pricing, (B) contains discounts or benefits offered to other customers of the Company or any exclusivityCompany Subsidiary based on the volume of purchases, including any Contract containing “most favored nation” or similar provisions, it being understood that, solely for purposes of preparing Section 4.08(a)(xvii) of the Sellers’ Disclosure Letter, such schedule shall list such Contracts on a “de-identified” basis;
(xviii) all Contracts concerning the lease of any Real Property (each such property a “Leased Real Property”) (including without limitation, brokerage contracts) listed or otherwise disclosed in 4.09(b) of the Sellers’ Disclosure Letter;
(xix) all Company IP Agreements set forth in 4.11(b) of the Sellers’ Disclosure Letter; and
(xx) any other Contract that is material to the Company or any Company Subsidiary or which imposes material obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of on the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or Subsidiary and not previously disclosed pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case this 4.08 in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 1,000,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeannum.
(ib) Each Material Contract is valid and binding on the Company or the applicable Company Subsidiary that is a party thereto in accordance with its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, terms and is in full force and effect and enforceable in accordance with its terms against effect. None of the Company or its Subsidiaries andany Company Subsidiary or, to the Company’s Sellers’ Knowledge, the counterparties any other party thereto is (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or bothboth would be) would result in a material breach of, of or default under, in any material respect, any Material Contract. Complete and correct copies of each Material Contract by the Company or its Subsidiaries or(including all modifications, to the Company’s Knowledge, the counterparties thereto. The Company has amendments and supplements thereto and waivers thereunder) have been made available to Parent true Buyer, with the exception of Contracts listed pursuant to Section 4.08(a)(i), (ii), (iii), (vi), (vii) and complete copies of all Material Contracts in effect (xvii), which have been made available to Buyer’s Representative on a clean room basis pursuant to that certain Clean Room Agreement, dated as of June 16, 2016, by and among Buyer, Houghton International, Inc., the date hereof (other than purchase ordersCompany and G▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and that certain Addendum to Clean Room Agreement, invoicesdated as of July 14, 2016, by and similar confirmatory or administrative documents that are ancillary to among Buyer, Houghton International, Inc., the main contractual relationship between the parties to a particular Contract or group of Contracts Company, G▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)Hitachi Consulting Corporation.
Appears in 1 contract
Material Contracts. (a) Except for Contracts listed in Section 3.13(a) 2.18 of the Disclosure Schedule, filed as exhibits to the Company SEC Documents and Government Contracts, neither the Company nor any Subsidiary of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as of the date of this Agreement, the Company or its Subsidiaries is a party to or bound by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any written Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any oral Contract for involving the disposition of any portion of the assets payment or business of the Company or its Subsidiaries or for the acquisition receipt by the Company or its Subsidiaries of $50,000 or more (each, a “Material Contract”), including:
(a) any “material contracts” (as such term is defined in Item 601(b)(10) of Regulation S-K of the assets Securities Act) with respect to the Company and its Subsidiaries (whether or business not filed by the Company with the SEC) and each Material Government Contract;
(b) any distributor, reseller, sales, advertising, agency, manufacturer’s representative, joint marketing, joint development, joint venture or original equipment manufacturing Contract that creates an exclusive relationship between the Company and such party or that is not terminable at will by the Company on thirty (30) days’ notice or less;
(c) any continuing Contract for the purchase of materials, supplies, equipment or services involving in the case of any such Contract more than $100,000 over the life of the Contract;
(d) any customer Contract that materially deviates from the Company’s standard form of customer Contract attached at Section 2.18(d) of the Disclosure Schedule;
(e) any customer Contract for which, to Seller’s knowledge, the amount paid to the Company or any of the Subsidiaries of the Company under such Contract is less than the cost to the Company and the Subsidiaries of the Company to perform the services under such Contract and any customer Contract for which, to Seller’s knowledge, the cost of any remaining services to be performed under such Contract is, or is anticipated by Seller to be, more than the amount remaining to be paid (including any amounts that have already been paid that have been booked as deferred revenue, and have not been recognized as revenue as of the Company Balance Sheet Date) to the Company or the Subsidiaries of the Company for the services remaining to be performed under such Contract;
(f) any trust indenture, mortgage, promissory note, loan agreement or other Person Contract for the borrowing of money, any currency exchange, commodities or other hedging arrangement or any leasing transaction of the type required to be capitalized in accordance with GAAP;
(other than acquisitions g) any Contract for any capital expenditure in excess of $50,000 individually or dispositions made $150,000 in the Ordinary Course of Business), or under aggregate;
(h) any Contract in accordance with which the Company or its Subsidiaries has any continuing obligation with respect to an “earn-out,” contingent purchase price Subsidiary of the Company is a lessor or lessee of any machinery, equipment, motor vehicles, office furniture, fixtures or other contingent personal property or deferred payment obligationreal property;
(xiii) any settlement, conciliation license or similar other Contract providing any Person with rights to any Company Intellectual Property (A) requiring monetary payments other than non-exclusive licenses granted by the Company or its Subsidiaries after in the date ordinary course of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closingbusiness); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xivj) any Contract with any Person with whom the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate Subsidiary of the Company or its Subsidiaries or any does not deal at arm’s length, including Affiliates of their respective the Company, Seller and Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment)of Seller;
(xvk) any employmentagreement of guarantee, consultingsupport, bonusindemnification, commissions assumption or endorsement of, or any similar commitment with respect to, the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per yearPerson;
(xvil) any employment Contract relating to the disposition or consulting Contract with severance, change in control, retention or similar arrangements, that will result acquisition of any material interest in any obligation business enterprise outside the ordinary course of the Company’s business;
(absolute m) any Contract relating to settlement of any administrative or contingentjudicial proceedings within the past five years; or
(n) any Contract that results in any Person holding a power of attorney from the Company or any Subsidiary of the Company that relates to the Company, any Subsidiary of the Company or any of its Subsidiaries to make any payment their respective businesses. To Seller’s knowledge, all Material Contracts are in executed written form and the Company or incur any Liability as a result the applicable Subsidiary of the consummation Company has performed in all material respects all of the obligations required to be performed by it and is entitled to all benefits under, and is not alleged to be in default in respect of, any Material Contract and, to Seller’s knowledge, each of the Material Contracts is in full force and effect. To Seller’s knowledge, the ability of each of the Company and each Subsidiary of the Company to exercise all of its rights under the Contracts to which it is a party without the payment of any additional amounts of consideration other than ongoing fees, royalties or payments that it would otherwise be required to pay in accordance with the terms of such Contracts had the transactions contemplated by this AgreementAgreement not occurred, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life will not be adversely affected by reason of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticetransactions contemplated hereby.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).
Appears in 1 contract
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which, Except as of the date of this Agreement, the Company or its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts pursuant to which the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on in Section 3.13(a4.22(a) of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies as of the Contracts listed on Section 3.13(a) of date hereof, neither the Company Disclosure Schedule have previously been made available nor any of its Subsidiaries is party to Parent or its agents or representatives, together with all amendments thereto):bound by any Contract:
(i) any Contract relating that would be required to Indebtedness for borrowed money of be filed by the Company or its Subsidiaries or as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries1933 Act;
(ii) that are employment, independent contractor, consulting, severance or similar agreements with any Contract individual (or such individual’s alter ego entity) under which the Company or any of its Subsidiaries is lessee or could become obligated to provide a base salary or annual consulting fees in excess of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) that (or, together with additional related Contracts with the same Person or its Affiliates) (A) involves the payment or receipt of amounts by the Company or any of its Subsidiaries of more than $35,000,000 in the calendar year ended December 31, 2022 or any subsequent calendar year or (B) is material to the CCUS Business and cannot be cancelled at any time by the Company or its applicable Subsidiary without penalty or further payment on no more than ninety (90) days’ notice;
(iv) that are partnership, strategic alliance or joint venture agreements (A) if the interest of the Company or any of its Subsidiaries therein has an aggregate book value in excess of $35,000,000 or (B) that are material to the CCUS Business;
(v) that provides for the acquisition or disposition, directly or indirectly (by merger or otherwise) of assets (including properties) or capital stock (other than acquisitions or dispositions of Hydrocarbons or inventory and raw materials and supplies in the ordinary course of business) (A) for aggregate consideration under such Contract under in excess of $25,000,000 or (B) pursuant to which the Company or its Subsidiaries is lessor of has continuing material “earn-out” or permits other contingent payment obligations;
(vi) providing for material indemnification by the Company or any third party to hold or operateits Subsidiaries, other than indemnification obligations in (A) customary joint operating agreements and (B) commercial agreements, in each case, in the ordinary course of business relating to the EOR Business;
(vii) that contains any tangible property “most favored nation” or most favored customer provision, preferential right or rights of first or last offer, negotiation or refusal (other than real property), owned or controlled by customary preferential rights in customary joint operating agreements entered into relating to the Company or its Subsidiaries, except for any lease or agreement under which EOR Business in the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess ordinary course of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contractsbusiness);
(vviii) that contains a put, call or similar right pursuant to which the Company or any Contract of its Subsidiaries could be required to purchase or sell, as applicable, any assets or any equity interests of any Person (excluding, in respect of the foregoing, agreements between the Company and its wholly-owned Subsidiaries);
(ix) that (A) limits materially restricts or purports to limit, in any material respect, materially restrict the freedom ability of the Company or any of its Subsidiaries Affiliates to engage compete with, or compete to provide services in any line of business or with any Person or in any geographic area or market segment, in each case that would so limit be applicable to the Surviving Corporation or purport to limit, in any material respect, of its Subsidiaries or the operations of Parent or any of its Affiliates after Subsidiaries following the ClosingEffective Time;
(x) that is a Collective Bargaining Agreement;
(xi) containing 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 (other than hedg▇▇ ▇▇ forward Contracts entered into in the ordinary course of business);
(xii) (A) with (1) any beneficial owner (as defined in Rule 13d-3 under the 1934 Act) of 5% or more of any class of securities of the Company or any of its Subsidiaries who has filed a Schedule 13D or Schedule 13G under the 1934 Act (or, to the Company’s Knowledge, is required to make such a filing), or (2) any director or officer of the Company or any of its Subsidiaries or (B) that is required to be disclosed under Item 404 of Regulation S-K promulgated under the 1933 Act;
(xiii) that (A) evidences Indebtedness for borrowed money of the Company or any Subsidiary of the Company (committed or outstanding) in excess of $15,000,000, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions evidences a capitalized lease obligation in excess of $15,000,000 that is required to be classified as a balance sheet liability of the Company in accordance with GAAP or (C) contains restricts the payment of dividends or other distribution of assets by any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or Subsidiaries;
(xiv) that would so limit or purports be required to limit, be scheduled against Section 4.04 if in any material respect, Parent existence as of the date hereof;
(xv) requiring future capital expenditures by the Company or any of its Affiliates after the Closing;
(vi) Subsidiaries other than any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditurescontemplated by Section 6.01(e) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business or, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedule;
(x) any Contract with any Person (A) pursuant to which the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (Bxvi) under which the Company or any of its Subsidiaries (A) grants to any Person any right of first refusalright, right of first negotiation, option to purchase, option to license or any other similar rights covenant not to sue with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person Property (other than acquisitions non-exclusive licenses granted to customers or dispositions made vendors in the Ordinary Course ordinary course of Business)business) or (B) obtains any right, license or under which the Company or its Subsidiaries has any continuing obligation covenant not to be sued with respect to an “earnany Intellectual Property owned by any third party (other than licenses for commercial off-out,” contingent purchase price or other contingent or deferred payment obligation;the-shelf software which are generally available on non-discriminatory pricing terms); or
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (Cxvii) that imposes is the subject of any material, non-monetary Action individually in excess of $5,000,000 and under which there are outstanding obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment including settlement agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written noticeSubsidiaries.
(ib) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent a true and complete copies copy of all Material Contracts each Contract listed or required to be listed in Section 4.22(a) of the Company Disclosure Schedule (such Contracts, together with any Contract to which the Company or any of its Subsidiaries becomes a party or by which it becomes bound after the date hereof that would be required to be listed in Section 4.22(a) of the Company Disclosure Schedule if in effect as of the date hereof hereof, the “Material Contracts” and each, a “Material Contract”). Except for breaches, violations or defaults which would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (other than purchase ordersi) each of the Material Contracts is valid, invoicesbinding obligation of the Company, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between Knowledge of the parties to a particular Contract or group of Contracts Company, each other party thereto, and thatin full force and effect, in each casecase subject to bankruptcy, do not contain insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles (whether considered in a proceeding in equity or at law), and (ii) since the Applicable Date, neither the Company nor any material executory of its Subsidiaries, nor to the Knowledge of the Company any other party to a Material Contract, has breached or continuing termsviolated any provision of, conditionsor taken or failed to take any act which, obligations with or rights)without notice, lapse of time, or both, would constitute a breach or default under the provisions of such Material Contract, and neither the Company nor any of its Subsidiaries has received notice that it has breached, violated or defaulted under any Material Contract.
Appears in 1 contract
Sources: Merger Agreement (Denbury Inc)
Material Contracts. Except for the agreements set forth on Schedule 8.1.11 subparts (a) Section 3.13(a) of the Company Disclosure Schedule contains a listing of all Contracts described in clauses (i) through (xiiid) below (all such contracts being referred to whichherein as the "Material Contracts"), as of there is no Assigned Contract (other than the Assigned Contracts entered into after the date of this Agreement, Agreement in the Company ordinary course of business) that is:
(a) an agreement containing a non-compete agreement or other covenant that in either case would by its Subsidiaries is a party or by which they are boundterms limit the freedom of Buyer following the Closing to compete in any material respect with respect to the Business with any third party, other than a Company Benefit Plan, and that are any such agreement or covenant which does not expired or have not been terminated and not including any Contracts pursuant to which materially impair the Company has with no material outstanding or executory obligations or Liabilities (such Contracts as are required to be set forth on Section 3.13(a) continued operation of the Company Disclosure Schedule, the “Material Contracts”). True, correct and complete copies Business as it is currently conducted;
(b) an agreement granting a Lien with respect to any of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien Purchased Property (other than a Permitted Lien) on any material assets Encumbrance or properties Lien of the Company or its Subsidiariesa Bondholder);
(iic) any Contract under which an agreement for the Company sale, lease or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property encumbrance (other than real property)a Permitted Encumbrance or Lien of a Bondholder) of any material Purchased Property (including any interconnection agreements) or grant of any preferential rights to purchase any material Purchased Property in each case outside the ordinary course of business; or
(d) an agreement other than as set forth above with respect to which the aggregate amount to be received or paid thereunder with respect to calendar year 1999 is expected to exceed $100,000 based on the payments which have been made under such agreement with respect to calendar year 1998, owned to the extent applicable. Except as set forth on Schedule 8.1.11, to the knowledge of Seller, each of the Material Contracts is valid, binding and in full force and effect and is enforceable by any other PersonSeller or Seller's Affiliates, as applicable, in accordance with its terms, except for any lease such failure to be valid, binding, in full force and effect or agreement enforceable that is not reasonably likely to have a Material Adverse Effect. Except as set forth on Schedule 8.1.11, to the knowledge of Seller, Seller and Seller's Affiliates have performed all material obligations required to be performed by them to date under which the aggregate annual rental payments do Material Contracts, and they are not exceed $500,000;
(iiiwith or without the lapse of time or the giving of notice, or both) any Contract under which in breach or default thereunder and, to the Company or its Subsidiaries is lessor knowledge of or permits any third Seller, no other party to hold any Material Contract is (with or operate, in each case, any tangible property (other than real property), owned without the lapse of time or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contractgiving of notice, or similar Contract, both) in each case, which requires, breach or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, default in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiarythereunder, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries hasexcept for such noncompliance, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business orbreaches and defaults that, individually or in the aggregate, in an amount in excess are not reasonably likely to have a Material Adverse Effect. As of $200,000 or made the date hereof, neither Seller nor any capital contribution toSeller Affiliate has, or other investment in, any Person;
(ix) any Contract required to be except as disclosed on Section 3.19 Schedule 8.1.11, received any written notice of the Company Disclosure Schedule;
(x) intention of any Contract with party to terminate any Person (A) pursuant to which the Company Material Contract. Except as set forth in Schedule 8.1.11, no consents or its Subsidiaries (or Parent or any of its Affiliates after the Closing) is or may be approvals are required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights from third parties with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition assignment of any portion Material Contract. Complete and correct copies of all the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business)Material Contracts, or under which the Company or its Subsidiaries has any continuing obligation together with respect all modifications and amendments thereto to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement or other Contract with the Company or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of the consummation of the transactions contemplated by this Agreement, termination of employment or both; and
(xvii) any other Contract the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from the Company or its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s Knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has have been made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory Buyer or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights)its representatives.
Appears in 1 contract
Material Contracts. The Company has made available to Parent a true and complete copy of each (a) Section 3.13(a“material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) to which the Company Disclosure Schedule contains a listing or any of all Contracts described in clauses (i) through (xiii) below to which, its Subsidiaries is party as of the date of this Agreement, hereof and (b) other contract currently being performed to which the Company or any of its Subsidiaries is a party or by which they are bound, other than a Company Benefit Plan, and that are not expired or have not been terminated and not including any Contracts as of the date hereof pursuant to which the Company has with no material outstanding and its Subsidiaries spent or executory obligations received or Liabilities are reasonably expected to spend or receive, in the aggregate, in excess of $15,000,000 over the term of such contract (each such Contracts as are required to be set forth on Section 3.13(a) of the Company Disclosure Schedulecontract, the a “Material ContractsContract”). TrueExcept for breaches, correct and complete copies of the Contracts listed on Section 3.13(a) of the Company Disclosure Schedule have previously been made available to Parent violations or its agents or representatives, together with all amendments thereto):
(i) any Contract relating to Indebtedness for borrowed money of the Company or its Subsidiaries or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of the Company or its Subsidiaries;
(ii) any Contract under defaults which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do would not exceed $500,000;
(iii) any Contract under which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $200,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from the Company or its Subsidiaries in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or 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 operations of Parent or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, Parent or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by the Company or its Subsidiaries in an amount in excess of (A) $300,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring the Company or its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a the Company or a Subsidiary, in each case in excess of $200,000;
(viii) any Contract under which the Company or its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the Ordinary Course of Business orhave, individually or in the aggregate, in an amount in excess of $200,000 or made any capital contribution toa Material Adverse Effect on the Company, or other investment in, any Person;
(ixi) any Contract required to be disclosed on Section 3.19 each of the Company Disclosure Schedule;
Material Contracts, and any contract entered into between the date hereof and the Effective Time that would be a Material Contract if entered prior to the date hereof, is valid and in full force and effect, and (xii) any Contract with any Person (A) pursuant to which neither the Company or its Subsidiaries (or Parent or nor any of its Affiliates after Subsidiaries, nor to the Closing) is Company’s knowledge any other party to a Material Contract, or may any contract entered into between the date hereof and the Effective Time that would be required a Material Contract if entered prior to pay milestonesthe date hereof, royalties has violated any provision of, or other contingent payments based on taken or failed to take any researchact which, testingwith or without notice, developmentlapse of time, regulatory filings or approvalboth, salewould constitute a default under the provisions of such contract, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which and neither the Company or its Subsidiaries grants to nor any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property;
(xi) any Contract for the disposition of any portion of the assets or business of the Company or its Subsidiaries or for the acquisition by the Company or its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions made in the Ordinary Course of Business), or under which the Company or its Subsidiaries has received notice that it has breached, violated or defaulted under any continuing obligation with respect Material Contract or any contract entered into between the date hereof and the Effective Time that would be a Material Contract if entered prior to an “earn-out,” contingent purchase price or other contingent or deferred payment obligation;
(xii) any settlement, conciliation or similar Contract (A) requiring monetary payments by the date hereof. Neither the Company or its Subsidiaries after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or its Subsidiaries (or Parent or nor any of its Affiliates after the Closing); and
(xiii) each collective bargaining agreement Subsidiaries is party to any contract, agreement, arrangement or other Contract with the Company understanding containing any provision or its Subsidiaries, on the one hand, and any labor union, labor organization or works council representing employees of the Company or its Subsidiaries, on the other hand;
(xiv) any Contract with the Company or its Subsidiaries, on the one hand, and any officer, director, manager, stockholder, member of an Affiliate of the Company or its Subsidiaries or any of their respective Affiliates (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Company Organizational Documents, employment agreements, indemnification agreements, and offer letters for at-will employment);
(xv) any employment, consulting, bonus, commissions or any other compensation Contract with an employee or individual consultant or independent contractor, involving aggregate payments of more than $500,000 per year;
(xvi) any employment or consulting Contract with severance, change in control, retention or similar arrangements, that will result covenant limiting in any obligation (absolute or contingent) material respect the ability of the Company or any of its Subsidiaries to make any payment or incur any Liability as a result of (or, after the consummation of the transactions contemplated by this AgreementMerger, termination Parent, the Surviving Corporation or any of employment or both; and
(xviitheir respective Subsidiaries) any other Contract the performance of which requires either to (A) annual payments sell any products or services of or to any other Person or in any geographic region, (B) engage in any line of business or (C) compete with or to obtain products or services from any Person or limiting the ability of any Person to provide products or services to the Company or any of its Subsidiaries in excess of $300,000 or (B) aggregate payments to or from or, after the Company or its Subsidiaries in excess of $1,500,000 over the life consummation of the agreement andMerger, in each case, that is not terminable by the applicable the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice.
(i) Each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, to the Company’s KnowledgeParent, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against the Company Surviving Corporation or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement any of creditors’ rights and subject to general principles of equity), (ii) the Company or its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the Company or its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company has made available to Parent true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rightstheir respective Subsidiaries).
Appears in 1 contract