Material Contracts. (a) For purposes of this Agreement, “Material Contract” shall mean the following to which the Company or any Subsidiary is a party or any of their assets are bound: (i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act), whether or not filed by the Company with the Commission; (ii) any employment or consulting contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000; (iii) any contract providing for indemnification or any guaranty by the Company, in each case that is material to the Company, other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course of business; (iv) any contract that purports to limit in any material respect the right of the Company (x) to engage in any line of business, or (y) to compete with any Person or operate in any geographical location; (v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value in excess of $250,000; (vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company; (vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party; (viii) any partnership, joint venture or similar contract that is material to the Company; (ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables; (x) any employee collective bargaining agreement or other contract with any labor union; (xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above; (xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or (xiii) any contract relating to material Company IP. (b) (i) All of the Material Contracts are valid and binding on the Company or its Subsidiaries, enforceable against it in accordance with its terms, and are in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the Company or any Subsidiary nor, to the knowledge of the Company, any third party is in violation of any provision of, or failed to perform any obligation required under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the Company or any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or has received written notice of material breach, of any Material Contract, except as disclosed in Schedule 3.13.
Appears in 3 contracts
Sources: Securities Purchase Agreement (Strobeck Matthew), Securities Purchase Agreement (Feinberg Family Trust), Securities Purchase Agreement (Vermillion, Inc.)
Material Contracts. (a) For purposes Except for this Agreement and the other Transaction Agreements, as of this Agreementthe date hereof, “Material Contract” shall mean the following to which the none of Company T or any Subsidiary its Subsidiaries is a party or to nor are any of their Company T’s or its Subsidiaries’ properties or assets are boundbound by:
(i) any “material contract” (as such term is defined in Contract that would be required to be filed or furnished by Company T pursuant to Item 601(b)(10) of Regulation S-K 19 and paragraph 4 of the Securities Instructions to Exhibits of Form 20-F under the Exchange Act), whether or not filed by the Company with the Commission;
(ii) any employment Contract granting a right of first refusal, first offer or consulting contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000first negotiation;
(iii) any contract providing for indemnification or any guaranty by the Company, in each case that is material Contract relating to the Companyformation, other than any contract providing for indemnification creation, operation, management or control of customers a partnership, joint venture, limited liability company or other Persons pursuant to contracts entered into in the ordinary course of businesssimilar arrangement;
(iv) any contract that purports to limit Contract for the acquisition, sale or lease (including leases in any connection with financing transactions) of material respect the right properties or assets of the Company T (x) to engage in any line by merger, purchase or sale of business, assets or (y) to compete with any Person stock or operate in any geographical locationotherwise);
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets Contract with a fair market value in excess of $250,000any Governmental Entity;
(vi) any contract that contains Contract involving the payment or receipt of amounts by Company T or its Subsidiaries, or relating to indebtedness for borrowed money or any provision that requires the purchase financial guaranty, of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Companymore than US$4,000,000;
(vii) any contract non-competition Contract or other Contract that obligates purports to limit, curtail or restrict in any material respect the ability of Company T or any of its Subsidiaries to conduct business on an exclusive compete in any geographic area, industry or preferential basis with any third partyline of business;
(viii) any partnershipContract that contains a put, joint venture call or similar contract that is material right pursuant to the Companywhich Company T or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any Person;
(ix) any mortgagesContract that contains restrictions with respect to (A) payment of dividends or any distribution with respect to equity interests of Company T or any of its Subsidiaries, indentures, guarantees, loans (B) pledging of share capital of Company T or credit agreements, security agreements any of its Subsidiaries or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower (C) issuance of guaranty by Company T or lender, in each case in excess any of $250,000, other than accounts receivables and payables;its Subsidiaries; or
(x) any employee collective bargaining agreement or material Company T IP Agreements other contract with any labor union;
than agreements for Off-the-Shelf Software and UGC Agreements (xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise all such Contracts described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IP.
(b) (i) All of the Material Contracts are valid and binding on the Company or its Subsidiaries, enforceable against it in accordance with its termsthrough (x), and are in full force and effectany Company T VIE Contracts, subject to laws of general application relating to bankruptcycollectively, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the “Company or any Subsidiary nor, to the knowledge of the Company, any third party is in violation of any provision of, or failed to perform any obligation required under the provisions of, any T Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the Company or any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or has received written notice of material breach, of any Material Contract, except as disclosed in Schedule 3.13Contracts”).
Appears in 3 contracts
Sources: Merger Agreement (Tudou Holdings LTD), Merger Agreement (Youku Inc.), Merger Agreement (Tudou Holdings LTD)
Material Contracts. (a) For purposes The Company has made available to Parent a true and complete copy of this Agreement, “Material Contract” shall mean the following each Contract to which the Company or any Subsidiary of the Company Subsidiaries is a party as of May 4, 2021, or by which the Company, any of the Company Subsidiaries or any of their respective properties or assets are bound:
is bound as of May 4, 2021, which (i) any is a “material contract” (as such term is defined in within the meaning of Item 601(b)(10) of Regulation S-K of the Securities Act), whether or not filed promulgated by the Company with the Commission;
SEC; (ii) any employment or consulting contract (in each case with respect to which contains covenants of the Company has continuing obligations as or any of the date hereof) Company Subsidiaries not to compete or engage in any line of business or compete with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary Person in excess of $200,000;
(iii) any contract providing for indemnification or any guaranty by the Companygeographic area, in each case case, in a manner that is material to the CompanyCompany and the Company Subsidiaries, taken as a whole, or would bind Parent or its pre-Closing Affiliates after the Effective Time; (iii) pursuant to which the Company or any of the Company Subsidiaries has entered into a partnership or joint venture with any other Person (other than the Company or any contract providing for indemnification of customers the Company Subsidiaries) that is material to the business of the Company and the Company Subsidiaries, taken as a whole or other Persons pursuant to contracts entered into in the ordinary course of business;
(iv) provides for the pending purchase or sale, option to purchase or sell, right of first refusal, right of first offer or other right to purchase, sell, dispose of or ground lease (by merger, by purchase or sale of assets or stock, by lease or otherwise) of (A) any contract that purports to limit in real property (including any material respect the right Company Property or any portion thereof) or (B) any other asset of the Company (x) to engage in or any line of business, or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets Subsidiary with a fair market value in excess of or purchase price greater than $250,000;
(vi) any contract that contains any provision that requires the purchase of all 25,000. Each instrument of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise type described in clauses (i)–(xi) above;
through (xiiiv) any contract which of this Section 3.22(a) is not otherwise described in clauses (i)-(xireferred to herein as a “Material Contract.” Section 3.22(a) above that is material to of the Company; or
(xiii) any contract relating to material Company IPDisclosure Schedule sets forth a true and complete list of each Material Contract.
(b) Each Material Contract is (iassuming due power and authority of, and due execution and delivery by, the other party or parties thereto) All of the Material Contracts are a valid and binding on obligation of the Company or its Subsidiariesthe Company Subsidiaries party thereto, enforceable against it subject to the Bankruptcy and Equity Exception, except to the extent they have previously expired or terminated in accordance with its their terms, and are in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither . Neither the Company or nor any Subsidiary of the Company Subsidiaries nor, to the knowledge of the Company, any third other party is in violation material breach of any provision of, or failed to perform any obligation required in material default under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither no event has occurred that, with the Company lapse of time or the giving of notice or both, would constitute a default thereunder by any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or has received written notice of material breach, of any Material Contract, except as disclosed in Schedule 3.13party thereto.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Monmouth Real Estate Investment Corp), Agreement and Plan of Merger (Monmouth Real Estate Investment Corp), Agreement and Plan of Merger (Equity Commonwealth)
Material Contracts. (a) For purposes Section 3.16(a) of this Agreement, “Material Contract” shall mean the Seller Disclosure Letter lists each Contract in the following categories that is in force as of the date hereof and which either constitutes a Transferred Contract or is a Contract to which the Company Seller or any Subsidiary of its Affiliates (including any Acquired Company) is a party or by which any of their assets are bound:bound and, in the case of Seller and any of its Affiliates other than the Acquired Companies, that relates to the FSS Business (in each case, other than Covered Insurance Policies) (such Contracts “Material Contracts”):
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act), whether Contract involving aggregate payments by Seller or not filed by the Company with the Commission;
(ii) any employment or consulting contract (in each case its Affiliates with respect to which the Company has continuing obligations as of the date hereofFSS Business to any Person (other than an Insurance Producer) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000;
[Redacted] during the consecutive twelve (iii) any contract providing for indemnification 12)-month period ended December 31, 2020, or any guaranty the delivery by the Company, in each case that is material Seller or its Affiliates with respect to the Company, other than any contract providing for indemnification FSS Business of customers goods or other Persons pursuant to contracts entered into in the ordinary course of business;
(iv) any contract that purports to limit in any material respect the right of the Company (x) to engage in any line of business, or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets services with a fair market value in excess of $250,000[Redacted] during the consecutive twelve (12)-month period ended December 31, 2020;
(ii) any Intercompany Agreement involving aggregate payments by Seller or its Affiliates (other than any Acquired Company) on the one hand, or any Acquired Company, on the other hand, in excess of $[Redacted] during the consecutive twelve (12)-month period ended December 31, 2020;
(iii) any Contract that is a mortgage, indenture, loan or credit agreement, security agreement or other agreement or instrument relating to the borrowing of money or extension of credit or the direct or indirect guarantee of any obligation for borrowed money of any Person or any other Liability in respect of indebtedness for borrowed money of any Person, in each case, involving Liabilities with respect to any Acquired Company or the FSS Business in excess of $[Redacted];
(iv) any Contract concerning the establishment or operation of a partnership, strategic alliance, joint venture, or limited liability company or other similar agreement or arrangement in respect of the business of any Acquired Company or the FSS Business;
(v) any Contract that limits, or purports to limit, the ability of Seller or its applicable Affiliates (or, after consummation of the transactions contemplated hereby, Buyer or any of its Affiliates) to engage in any business with any Person or to compete in any line of business or with any Person or in any geographic area or during any period of time, to solicit customers in a way that would reasonably be expected to be material to any Acquired Company or the FSS Business or to manufacture, market, sell or administer any product, in each case, except for Contracts that limit the ability of an Acquired Company to solicit the employment of, or hire individuals employed by, other Persons;
(vi) any contract Contract that contains obligates Seller or its Affiliates to purchase or otherwise obtain any provision that requires the purchase of all of the Company’s requirements for a given product or service exclusively from a given third party, which single party or sell any product or service is material exclusively to the Companya single party;
(vii) any contract that obligates the Contract creating or granting any Encumbrance (other than Permitted Encumbrances) on any assets, properties or rights of an Acquired Company to conduct business or on an exclusive or preferential basis with any third partya Purchased Asset;
(viii) any partnershipContract that provides for the license to a Third Party of any material Business IP, joint venture or similar contract that is for the license to Seller or one of its Affiliates (primarily for the benefit of the FSS Business) of any material Intellectual Property (other than “shrink wrap” or “click through” licenses or licenses of generally-available “off the shelf” computer software or databases) under which Seller or any of its Affiliates made payments with respect to the CompanyFSS Business in an amount in excess of $[Redacted] during the consecutive twelve (12)-month period ended December 31, 2020;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
Contract under which (xA) any employee collective bargaining agreement Person has directly or other contract with indirectly guaranteed any labor union;
(xi) any other contract under which the Company is obligated to make payment Liabilities or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IP.
(b) (i) All obligations of the Material Contracts are valid and binding on the Company or its Subsidiaries, enforceable against it in accordance with its terms, and are in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the Company or any Subsidiary nor, to the knowledge of the Company, any third party is in violation of any provision of, or failed to perform any obligation required under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the Company or any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or has received written notice of material breach, of any Material Contract, except as disclosed in Schedule 3.13.Acquired Companies or
Appears in 3 contracts
Sources: Master Transaction Agreement, Master Transaction Agreement, Master Transaction Agreement
Material Contracts. (a) For purposes Except for this Agreement and except for Contracts filed as exhibits to the Company SEC Reports filed prior to the date of this Agreement, “Material Contract” shall mean as of the following to which date hereof, none of the Company or any Subsidiary its Subsidiaries is a party to or any of their assets are boundbound by:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act), whether or not Contract that would be required to be filed by the Company with pursuant to Item 4 of the CommissionInstructions to Exhibits of Form 20-F under the Exchange Act;
(ii) any employment Contract involving the payment or consulting contract (in each case with respect to which receipt of amounts by the Company has continuing obligations as or any of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directorsits Subsidiaries, or relating to material Indebtedness (z) other than any Indebtedness solely between the Company employee providing for an annual base salary in excess and any of $200,000its Subsidiaries);
(iii) any contract providing for indemnification or any guaranty by the Companymaterial joint venture contracts, in each case that is material to the Companystrategic cooperation, other than any contract providing for indemnification of customers partnership arrangements or other Persons pursuant to contracts entered into in agreements outside the ordinary course of business;
(iv) any contract that purports to limit in any material respect the right business involving a sharing of the Company (x) to engage in any line of businessprofits, losses, costs or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), liabilities by the Company or any of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis its Subsidiaries with any third party;
(viiiiv) any partnership, joint venture Contract that limits in any material respect the ability of the Company or similar contract any of its Subsidiaries or any of their respective employees to compete in any material line of business or with any Person or entity or in any geographic area or during any period of time in a manner that is material to the CompanyCompany and its Subsidiaries, taken as a whole;
(v) any material Contract entered into after June 30, 2011 or not yet consummated, for the acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation) of assets (other than assets purchased pursuant to capital expenditures) or share capital or other equity interests of another Person;
(vi) any Contract between or among the Company or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments, taken as whole, that is material to the Company and its Subsidiaries;
(vii) any Contract between the Company or any of its Subsidiaries and any director or executive officer of the Company or any Person beneficially owning five percent or more of the outstanding Shares required to be disclosed pursuant to Item 7B or Item 19 of Form 20-F under the Exchange Act;
(viii) any Contract (other than Contracts granting Company Options) giving the other party the right to terminate such Contract as a result of this Agreement or the consummation of the Merger where (A) such Contract requires any payment, taken as whole, that is material to the Company and its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract, taken as whole, that is material to the Company and its Subsidiaries; and
(ix) any mortgages, indentures, guarantees, loans or credit other contracts and agreements, security agreements whether or other contractsnot made in the ordinary course of business, in each case relating which are material to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment and its Subsidiaries, taken as a whole, or incur costs in excess the conduct of $250,000 in any year and their respective businesses, or the absence of which is not otherwise would have a Company Material Adverse Effect. Each such Contract described in clauses (i)–(xi) above;
through (xii) any contract which is not otherwise described in clauses (i)-(xiix) above and each such Contract that is material would be a Material Contract but for the exception of being filed as an exhibit to the Company; or
(xiii) any contract relating Company SEC Reports is referred to material Company IPherein as a “Material Contract”.
(b) As of the date of this Agreement, except as would not have a Company Material Adverse Effect, (i) All of the each Material Contracts are Contract is a legal, valid and binding on obligation of the Company or its SubsidiariesSubsidiaries party thereto and, enforceable against it in accordance with its termsto the Company’s Knowledge, and are in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or the other equitable remedies, and to limitations of public policyparties thereto, (ii) neither the Company or nor any Subsidiary of its Subsidiaries nor, to the knowledge of the Company’s Knowledge, any third other party thereto is in breach or violation of any provision of, or failed to perform any obligation required under the provisions ofdefault under, any Material ContractContract and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, except as disclosed in Schedule 3.13 to the Company’s Knowledge, the 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 (iii) neither to the Company’s Knowledge, the Company and its Subsidiaries have not received any written claim or any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or has received written notice of material breachdefault, of termination or cancellation under any such Material Contract, except as disclosed in Schedule 3.13.
Appears in 3 contracts
Sources: Merger Agreement (Sequoia Capital China I Lp), Merger Agreement (Chiu Na Lai), Merger Agreement (Le Gaga Holdings LTD)
Material Contracts. (a) For purposes of Except for (i) this AgreementAgreement (and the Contracts contemplated to be entered into hereunder by the Company), “Material Contract” shall mean the following (ii) contracts, arrangements or understandings to which the Company or any Company Subsidiary is a party as of the date of this Agreement (the “Contracts”) filed as exhibits to the Company SEC Reports or (iii) as set forth in Section 3.15(a) of the Company Disclosure Letter (such Contracts collectively, the “Material Contracts”), as of the date of this Agreement, none of the Company or any of their assets are boundCompany Subsidiary is a party to or bound by:
(i) any “material contract” (as such term Contract that is defined in Item 601(b)(10) of Regulation S-K of the Securities Act), whether or not required to be filed by the Company with pursuant to Item 15 of Form 10-K under the CommissionExchange Act;
(ii) any employment Contract relating to any credit, loan or consulting contract facility arrangement, guarantee or Indebtedness (in each case with respect to which whether or not incurred, assumed, guaranteed or secured by any asset of the Company has continuing obligations as or any Company Subsidiary) of more than US$2,000,000 for each such Contract individually, other than any Indebtedness between or among any of the date hereof) with Company and any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000Subsidiary;
(iii) any contract providing for indemnification joint venture Contract, strategic cooperation or partnership arrangements, or other agreement involving a sharing of profits, losses, costs or liabilities by the Company or any guaranty by the CompanyCompany Subsidiary with any Third Party, in each case that is material to the Companybusiness of the Company and the Company Subsidiaries taken as a whole;
(iv) all Contracts relating to the purchase or sale of any Shares or other securities of the Company or any Company Subsidiary that has a fair market value or purchase price of more than US$1,000,000 under which there are material rights or obligations outstanding;
(v) any Contract that limits, or purports to limit, the ability of the Company or any Company Subsidiary to compete in any material line of business or with any person or entity or in any geographic area or during any period of time;
(vi) any Contract prohibiting the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Company Subsidiaries, prohibits the pledging of the capital stock of the Company or any wholly owned Company Subsidiary or prohibits the issuance of any guaranty by the Company or any wholly owned Company Subsidiary;
(vii) any Contract providing for any indemnification, earn-out, installment or other contingent obligations or similar payments that is still in effect and could reasonably be expected to result in payment of more than US$250,000, to or from the Company or any Company Subsidiary, by or to any Third Party;
(viii) any Contract providing for the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such Contract (or series of related Contracts) in excess of US$5,000,000;
(ix) any Contract that are license agreements material to the business of the Company and the Company Subsidiaries, taken as a whole, pursuant to which the Company or any of the Company Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or such Company Subsidiary or Company Subsidiaries (other than any contract providing license agreements for indemnification of customers commercially available software on standard terms or other Persons pursuant to contracts entered into non-exclusive licenses granted in the ordinary course of business;
(iv) any contract that purports to limit in any material respect the right of the Company (x) to engage in any line of business, or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;; and
(x) any employee collective bargaining agreement Contract providing for any change of control or other contract with any labor union;
(xi) any other contract under which the Company is obligated similar payments to make payment or incur costs a third party in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IPUS$1,000,000.
(b) Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) All of the each Material Contracts are Contract is valid and binding on the Company or its Subsidiaries, enforceable against it in accordance with its terms, a Company Subsidiary and are in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws Laws of general applicability relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remediesrights, and to limitations of public policy, general equity principles; (ii) neither as of the Company or any Subsidiary nordate of this Agreement, to the knowledge of the Company, any third no other party is in material breach or violation of any provision of, or failed to perform any obligation required under the provisions ofdefault under, any Material Contract, except as disclosed in Schedule 3.13 and ; (iii) neither the Company or and the Company Subsidiaries have not received any Subsidiary norwritten claim of material default under any such Material Contract and, to the knowledge of the Company, no fact or event exists that could give rise to any third party, is in breach, or has received written notice claim of material breach, of default under any Material Contract; and (iv) the Company has not received, except as disclosed of the date of this Agreement, any notice in Schedule 3.13writing from any person that such person intends to terminate any Material Contract.
Appears in 3 contracts
Sources: Merger Agreement (Full Alliance International LTD), Merger Agreement (Yongye International, Inc.), Merger Agreement (Morgan Stanley)
Material Contracts. (a) For purposes Except as set forth in Schedule 4.16 of this Agreementthe Disclosure Schedules, “Material Contract” shall mean the following to which none of the Company or any Company Subsidiary is a party to or any of their assets are boundobligated under:
(ia) any “material contract” (as such term Contract which obligates the Company or any Company Subsidiary for payments in any future calendar year in excess of RMB2,000,000, in the aggregate, and which is defined in Item 601(b)(10) of Regulation S-K of the Securities Act), whether or not filed terminable by the Company with or the CommissionCompany Subsidiaries without additional payment or penalty within ninety (90) days of delivery of notice of such termination;
(iib) any employment or consulting contract (in each case with respect to Contract which restricts the Company has continuing obligations as of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000;
(iii) any contract providing for indemnification or any guaranty by the Company, in each case that is material to the Company, other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course of business;
(iv) any contract that purports to limit in any material respect the right of the Company (x) to engage Subsidiary from engaging in any line of business, business or (y) to compete competing with any Person or operate in any geographical locationgeographic region;
(vc) any contract partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the disposition formation, creation, operation, management or acquisitioncontrol of any partnership or joint venture which is not a wholly-owned subsidiary of the Company;
(d) any Contract (other than among the Company Subsidiaries) under which Indebtedness in excess of RMB2,000,000 is outstanding or pursuant to which any property or asset of the Company or any of the Company Subsidiaries having a book value of more than RMB2,000,000 is mortgaged, pledged or otherwise subject to an Encumbrance or any Contract restricting the incurrence of Indebtedness or the incurrence of Encumbrances or restricting the payment of dividends;
(e) any Contract entered into within three (3) years prior to the date hereof for the acquisition or disposition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value or capital stock or other equity interests of another Person for aggregate consideration in excess of $250,000RMB2,000,000 and any term sheets or letters of intent in effect and not expired as of the date hereof, whether or not binding, relating to any of the foregoing in this clause (e);
(vif) other than Contracts for ordinary repair and maintenance, any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material Contract relating to the Company;
(vii) any contract that obligates development or construction of, or additions or expansions to, the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnershipProperties, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated or any of the Company Subsidiaries has, or expects to make payment or incur costs incur, an obligation in excess of $250,000 RMB2,000,000 in any year and which is the aggregate that has not otherwise described in clauses (i)–(x) abovebeen satisfied as of the date hereof;
(xiig) any contract Contract to which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IP.
(b) (i) All of the Material Contracts are valid and binding on the Company or its Subsidiariesany of the Company Subsidiaries has continuing indemnification obligations or potential liability under any purchase price adjustment that, enforceable against it in accordance with its termseach case, and are could reasonably be expected to result in full force and effect, subject to laws future payments of general application the Company or such Company Subsidiary of more than RMB2,000,000 or any Contract relating to bankruptcythe settlement or proposed settlement of any Legal Action, insolvencywhich involves the issuance of equity securities or payment of an amount, fraudulent transferin any such case, reorganizationhaving a value of more than RMB2,000,000;
(h) any Contract for the employment of, moratorium and similar laws relating to or affecting creditors’ rights generally and rules receipt of law governing specific performanceany services from, injunctive relief any director, officer or other equitable remediesemployee on a full-time, and to limitations of public policypart-time, (ii) neither consulting or other basis providing annual case compensation from the Company or any Subsidiary nor, in excess of RMB500,000;
(i) any Contract which relates to any material Intellectual Property;
(j) any Contract (other than Contracts referenced in clause (a) through (i) of this Section 4.16) which by its terms call for payments by the knowledge Company and the Company Subsidiaries in excess of the Company, RMB2,000,000;
(k) any third party is in violation Contract with any Sellers or any current officer or director of any provision of, or failed to perform any obligation required under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the Company or any Company Subsidiary nor, to the knowledge or any other Affiliates of the CompanyCompany or any Company Subsidiary; or
(l) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control’, or any third partyContract that would prohibit or delay the consummation of the transactions contemplated by this Agreement or the Company Documents, or that would trigger, give rise to, accelerate or augment any liabilities or terminate or modify any rights of the Company or any Company Subsidiary as a result of the consummation of the transactions contemplated hereby (the Contracts described in clause (a) through (k) of this Section 4.16 and those agreements set forth in Schedule 4.13 of the Disclosure Schedules together with all exhibits and schedules thereto collectively, the “Material Contracts”).
(m) (i) Neither the Company nor any Company Subsidiary is in breachmaterial breach of or material default (with or without notice, lapse of time or has received written notice of material breach, both) under the terms of any Material Contract, except (ii) to the Knowledge of the Company, as disclosed of the date hereof, no other party to any Material Contract is in Schedule 3.13breach of or default (with or without notice, lapse of time or both) under the terms of any Material Contract and (iii) each Material Contract is a valid and binding obligation of the Company or the Company Subsidiary a party thereto and is in full force and effect assuming that each such Material Contract is a valid and binding obligation of the other party or parties to the Material Contract. The Company has, no later than fifteen (15) days prior to the Closing Date, made available to Purchaser true and complete copies of all Material Contracts, including any amendment thereto.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Home Inns & Hotels Management Inc.)
Material Contracts. (a) For purposes Section 3.22(a) of this Agreementthe Company Letter contains a true, “Material Contract” shall mean complete and correct list of the following Contracts to which the Company or any Subsidiary of its Subsidiaries is a party or by which any property or asset of the Company or any of their assets are its Subsidiaries is bound:, in each case as of the date of this Agreement, other than Company Plans and Company Real Property Leases listed on Section 3.15(b) of the Company Letter (collectively, the “Material Contracts”):
(i) each Contract (A) the terms of which obligate or may in the future obligate the Company or any of its Subsidiaries to make any severance, termination or similar payment to any current or former legal representative of the Company or any of its Subsidiaries, (B) pursuant to which the Company or any of its Subsidiaries may be obligated to make any bonus or similar payment to any current or former Company Service Provider in connection with the consummation of the transactions contemplated by this Agreement, or (C) that provides for indemnification of any current or former Company Service Provider;
(ii) each Contract with any Governmental Authority;
(iii) any Contract with sole-source or single-source suppliers of material tangible products or services or pursuant to which the Company or any of its Subsidiaries has agreed to purchase a minimum quantity of goods relating to any Company Product or has agreed to purchase goods relating to any Company Product exclusively from a certain party;
(iv) any stockholders’, investor rights, registration rights, tax receivables or similar or related Contract or arrangement, or any Contract or arrangement relating to the exercise of any voting rights in respect of any Company Securities;
(v) any Contract pursuant to which the Company or any of its Subsidiaries or any of its Affiliates (including, after the Closing, Buyer or any of its Affiliates) has continuing obligations or interests involving the payment of royalties or other amounts calculated based upon the revenues or income of the Company or any of its Subsidiaries or any other material contingent payment obligations, including any milestone or similar payments, including upon the achievement of regulatory or commercial milestones, in each case that is not terminable by the Company or its Subsidiaries without penalty without more than thirty (30) days’ notice;
(vi) each Contract that limits the freedom of the Company, any of its Subsidiaries or any of its Affiliates (including, after the Closing, Buyer or any of its Affiliates), to compete or engage in any line of business or geographic region or with any Person, sell, supply or distribute any product or service or that otherwise has the effect of restricting the Company, its Subsidiaries or Affiliates (including, after the Closing, Buyer or any of its Affiliates), from the development, marketing or distribution of any products or services;
(vii) each Contract with any Person providing for a partnership, joint venture, limited liability company agreement, and each material collaboration, research and development arrangement, strategic alliance, co-marketing arrangement or similar profit sharing arrangement (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries);
(viii) each Contract entered into since January 1, 2022: (A) relating to the disposition or acquisition by the Company or any of its Subsidiaries of any business (whether by merger, amalgamation, consolidation or other business combination, sale of assets, sale of shares in the share capital or other voting securities, tender offer, exchange offer, or similar transaction); or (B) pursuant to which the Company or any of its Subsidiaries will acquire or is obligated to acquire any business, assets, ownership interest or make an investment (other than the Company or any of its Subsidiaries);
(ix) each Contract with respect to the acquisition or disposition of any Person (whether by merger, amalgamation, consolidation or other business combination, sale of assets, sale of shares in the share capital or other voting securities, tender offer, exchange offer or similar transaction) pursuant to which the Company or any of its Subsidiaries has (A) material continuing representations, covenants or indemnification obligations (other than in the ordinary course of business of the Company and its Subsidiaries in a manner consistent with past practice in connection with the development, sale or licensing of Company Products), or (B) any “earn-out” or similar contingent payment obligations, in each case, (x) other than any such obligations that are immaterial to the Company and its Subsidiaries, taken as a whole, or (y) other than any Contract that provides solely for the acquisition or disposition of inventory, raw materials or equipment in the ordinary course of business of the Company and its Subsidiaries in a manner consistent with past practice;
(x) each Contract to which the Company or any of its Subsidiaries is a party which grants an exclusive right to Intellectual Property Rights (other than Contracts with respect to generally commercially available software and hardware and customer Contracts for the sale of Company Products to distributors or end-users of such Company Products entered into in the ordinary course of business);
(xi) each Contract that grants any right of first refusal, right of first offer, right of first negotiation or similar preferential right in favor of a Third Party or that limits the ability of the Company, any of its Subsidiaries or any of its Affiliates (including, after the Closing, Buyer or any of its Affiliates) to own, operate, sell, transfer, pledge or otherwise dispose of any material businesses or material assets;
(xii) each Contract (A) containing exclusivity obligations; (B) containing any “most favored nations” provisions granted by any of the Company, or any of its Subsidiaries or any of its Affiliates (including, after the Closing, Buyer or any of its Affiliates); (C) pursuant to which any of the Company, or any of its Subsidiaries or any of its Affiliates (including, after the Closing, Buyer or any of its Affiliates) is obligated to purchase a minimum quantity of goods or services from another Person with a minimum contract value of not less than EUR 500,000 per contract, or (D) granting rights to any third party to, or otherwise restricting, the exploitation, sale, supply or license of any Company Product;
(xiii) other than instruments providing for indebtedness that would not, in the aggregate, exceed $1,000,000, each Contract that (A) is an indenture, credit agreement, loan agreement, security agreement, guarantee of, note, mortgage or other agreement providing for indebtedness (including obligations under any capitalized leases but excluding agreements between the Company and any wholly owned Subsidiary of the Company or between wholly owned Subsidiaries of the Company) or pursuant to which the Company or any of its Subsidiaries guarantees any such indebtedness of any other Person (other than the Company or another wholly owned Subsidiary of the Company), (B) materially restricts the Company’s and its Subsidiaries’ (taken as a whole) ability to incur indebtedness or guarantee the indebtedness of others, (C) grants a Lien (other than a Permitted Lien) or restricts the granting of Liens on any property or asset of the Company or its Subsidiaries that is material to the Company and its Subsidiaries or (D) is an interest rate derivative, currency derivative, forward purchasing, swap or other hedging contract;
(xiv) each Collective Bargaining Agreement;
(xv) each Contract that provides for a settlement or conciliation (A) with any Governmental Authority that (1) restricts or imposes material obligations upon the Company or its Subsidiaries (taken as a whole) or (2) materially disrupts the business of the Company and its Subsidiaries (taken as a whole) as currently conducted, or (B) that would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement;
(xvi) the top ten (10) Contracts measured by the aggregate payments made during the fiscal year ended December 31, 2024 with a customer of the Company or any Subsidiary of the Company, including distributors (excluding Contracts under which there are no further obligations of the Company or any Subsidiary of the Company to deliver products and purchase orders);
(xvii) any Contract (other than the type described in the subclauses above) that involves aggregate payments by or to the Company or any Subsidiary of the Company in excess of $5,000,000 per annum in the current calendar year or $5,000,000 in the aggregate; and
(xviii) each Contract not otherwise described in any other subsection of this Section 3.21(a) that would constitute a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act), whether or not filed as promulgated by the Company with the Commission;
(iiSEC) any employment or consulting contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000;
(iii) any contract providing for indemnification or any guaranty by the Company, in each case that is material to the Company, other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course of business;
(iv) any contract that purports to limit in any material respect the right of the Company (x) to engage in any line of business, or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IP.
(b) A true, complete or redacted, as the case may be, and correct copy of each written Material Contract in effect as of the date of this Agreement, and a true, complete and correct summary of each oral Material Contract in effect as of the date of this Agreement, has been made available to Buyer prior to the date of this Agreement. Except for matters that would not, individually or in the aggregate, be or reasonably expected to be, material to the Company and its Subsidiaries, taken as a whole, (i) All each Material Contract is a valid, binding and enforceable obligation of the Material Contracts are valid and binding on the Company or one of its Subsidiaries, enforceable against it on the one hand, and, to the knowledge of the Company, of the other party or parties thereto, on the other hand, in accordance with its terms, subject to the Enforceability Exceptions, and are each Material Contract is in full force and effect, subject (ii) the Company and each of its Subsidiaries has performed all obligations required to laws be performed by it under each Material Contract and, to the knowledge of general application relating the Company, each other party to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating each Material Contract has performed all obligations required to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policybe performed by it under such Material Contract, (iiiii) neither the Company or nor any Subsidiary of its Subsidiaries, nor, to the knowledge of the Company, any third other party is to a Material Contract, has breached or violated in violation of any material respect any provision of, or taken or failed to perform take any obligation required act which, with or without notice, lapse of time or both, would constitute a material breach or a default under the provisions of, any of such Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the Company or nor any Subsidiary norof its Subsidiaries has received written or, to the knowledge of the Company, oral notice of any, and, to the knowledge of the Company, none of the Company or any third partyof its Subsidiaries is in, is in breachdefault or material breach under (nor does there exist any condition which upon the passage of time or the giving of notice or both would cause such a default or material breach under) any Material Contract and (iv) neither the Company nor any of its Subsidiaries has received any written or, to the knowledge of the Company, oral notice from any other party to any such Material Contract that such party intends to terminate, or has received written notice of not renew, any such Material Contract or to adjust the fee schedule under such Material Contract in any material breach, of any Material Contract, except as disclosed in Schedule 3.13respects.
Appears in 2 contracts
Sources: Purchase Agreement (BioNTech SE), Purchase Agreement (CureVac N.V.)
Material Contracts. (a) For purposes Section 3.18 of this Agreementthe Company Disclosure Schedule sets forth a list of all Material Contracts. The Company has heretofore made available to Parent true, “Material Contract” shall mean the following correct and complete copies of all written or oral contracts and agreements (and all amendments, modifications and supplements thereto and all side letters to which the Company or any Subsidiary of its subsidiaries is a party affecting the obligations of any party thereunder) to which the Company or any of its subsidiaries is a party or by which any of their its assets or properties are bound:
bound that are of the following type: (i) any “to the extent material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K to the business, assets or properties of the Securities Act)Company and its subsidiaries taken as a whole, whether product design or not filed by the Company with the Commission;
development, or indemnification contracts (ii) including, any employment or consulting contract (in each case with respect to which the Company has continuing obligations as or any of the date hereof) with any current or former (x) executive officer its subsidiaries is a party involving employees of the Company, ); (yii) member merchandising or distribution agreements involving the payment of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000;
2,500,000 per year; (iii) any contract providing for indemnification or any guaranty by to the Company, in each case that is extent material to the Companybusiness, other than any contract providing for indemnification assets or properties of customers the Company and its subsidiaries taken as a whole, contracts granting a right of first refusal or other Persons pursuant to contracts entered into in the ordinary course of business;
first negotiation; (iv) any contract that purports to limit in any the extent material respect to the right business, assets or properties of the Company and its subsidiaries taken as a whole, partnership or joint venture agreements; (v) agreements for the acquisition, sale or lease of material assets or properties of the Company (x) to engage in any line by merger, purchase or sale of business, assets or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger stock or otherwise)) entered into since January 1, by the Company of assets with a fair market value 1996 involving in excess of $250,000;
1,000,000; (vi) any contract that contains any provision that requires to the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is extent material to the Company;
business, assets or properties of the Company and its subsidiaries taken as a whole, contracts or agreements with any Governmental Entity; (vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans loan or credit agreements, security mortgages, indentures or other agreements or other contracts, in each case relating instruments evidencing indebtedness for borrowed money by the Company or any of its subsidiaries or any such agreement pursuant to which indebtedness for borrowed money, whether as borrower or lender, in each case involving in excess of $250,0001,000,000; (viii) to the extent material to the business, other than accounts receivables assets or properties of the Company and payables;
its subsidiaries taken as a whole, agreements that purport to limit, curtail or restrict the ability of the Company or any of its subsidiaries to compete in any geographic area or line of business; (ix) to the extent material to the business, assets or properties of the Company and its subsidiaries taken as a whole, foundry, wafer manufacturing or fabricating agreements, (x) any employee collective bargaining agreement supply or other contract with any labor union;
(xi) any other contract under which second source agreements involving the Company is obligated to make payment or incur costs of in excess of $250,000 2,500,000 per year, (xi) agreements with customers relating to the sale of products involving the payment of in any excess of $2,500,000 per year and which is not otherwise described in clauses (i)–(x) above;
(xii) commitments and agreements to enter into any contract which is not otherwise described of the foregoing (collectively, together with any such contracts entered into in clauses (i)-(xi) above that is material to accordance with Section 5.1, the Company; or
(xiii) any contract relating to material Company IP"MATERIAL CONTRACTS").
(b) (i) All Each of the Material Contracts are constitutes the valid and legally binding on obligation of the Company or its Subsidiariessubsidiaries, enforceable against it in accordance with its terms, and are is in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither . There is no default under any Material Contract so listed either by the Company (or any Subsidiary norits subsidiaries) or, to the knowledge Company's knowledge, by any other party thereto, and no event has occurred that with the giving of notice, the Company, any third party is in violation lapse of any provision oftime, or failed to perform any obligation required under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither both would constitute a default thereunder by the Company (or any Subsidiary norits subsidiaries) or, to the knowledge of the Company's knowledge, any third other party, is .
(c) No party to any such Material Contract has given notice to the Company of or made a claim against the Company in breach, or has received written notice of material breach, respect of any Material Contract, except as disclosed in Schedule 3.13breach or default thereunder.
Appears in 2 contracts
Sources: Merger Agreement (Unitrode Corp), Merger Agreement (Texas Instruments Inc)
Material Contracts. (a) For purposes As of the date of this Agreement, “Material Contract” shall mean the following to which the Company or any Subsidiary is and its Subsidiaries are not a party to or bound by any of their assets are boundContract:
(i) any “that would be required to be filed by the Company as a material contract” (as such term is defined in contract pursuant to Item 601(b)(10) of Regulation S-K of the Securities Act), whether or not filed by the Company with the CommissionSEC;
(ii) any employment that is or consulting contract (in each case with respect to which the Company has continuing obligations as of the date hereof) creates a Partnership with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000;
(iii) any contract providing for indemnification or any guaranty by the Company, in each case other Person that is material to the Company and its Subsidiaries, taken as a whole, or that relates to the formation, operation, management or control of any such Partnership,
(iii) (A) that is an indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other agreement, in each case, providing for indebtedness in excess of $100,000,000 (other than agreements between the Company and any wholly-owned Subsidiary or between wholly-owned Subsidiaries) or pursuant to which the Company or any of its Subsidiaries guarantees any material indebtedness of any other Person, (B) that materially restricts the Company’s or any Subsidiary’s ability to incur Indebtedness or guarantee the Indebtedness of others, (C) that grants a Lien (other than a Permitted Lien) or restricts the granting of Liens on any property or asset of the Company or its Subsidiaries that taken as a whole is material to the Company and its Subsidiaries, taken as a whole, or (D) that provides for or relates to any interest rate derivatives, currency derivatives or other derivatives;
(iv) that is a written Contract (other than this Agreement) for the acquisition of any Person, assets or business or sale of any of its Subsidiaries, assets or businesses after the date hereof, in each case with a fair market value or purchase price (including assumption of debt) in excess of $50,000,000 (other than intercompany agreements);
(v) under which the Company and its Subsidiaries have made or received payments in excess of $50,000,000 in calendar year 2014 (other than payments between the Company and any of its wholly-owned Subsidiaries);
(vi) under which any third party is authorized to sell, sublicense, lease, distribute, market or take orders for the Company Products as of the date of this Agreement with the Company’s top ten (10) customers by revenue in 2014;
(vii) with respect to the acquisition or disposition of any Person, assets or business (whether by merger, amalgamation, consolidation or other business combination, sale of assets, sale of share capital, tender offer or exchange offer or similar transaction) pursuant to which the Company or any of its Subsidiaries has (x) continuing indemnification obligations or (y) any “earn-out” or similar contingent payment obligations, in each case, in excess of $50,000,000 (other than any Contract that provides for the acquisition of inventory, raw materials or equipment in the ordinary course);
(viii) that contains a right of first refusal, first offer or first negotiation or a call or put right with respect to any asset that is material to the Company and its Subsidiaries, taken as a whole;
(ix) that prohibits or restricts the payment of dividends or distributions in respect of the Company’s shares or capital stock;
(x) that is a purchase or sale agreement with any Significant Customer or Significant Supplier for purchases or sales in excess of $50,000,000 in the prior fiscal year (other than purchase orders issued in the ordinary course of business that do not materially modify the terms of any underlying Contract pursuant to which such purchase orders are issued);
(xi) that is between the Company or any of its Subsidiaries, on the one hand, and any of the Company’s or its Subsidiaries’ respective directors or officers or shareholders who own five percent (5%) or more of the Company Common shares, other than (i) any employee agreements and agreements entered into under any U.S. Benefit Plan or Foreign Benefit Plan, (ii) transactions conducted on an arms’ length basis or (iii) any agreements with consideration of less than $120,000;
(xii) that is a settlement, conciliation or similar agreement (x) with any Governmental Entity which materially (i) restricts or imposes material obligations upon the Company or its Subsidiaries or (ii) materially disrupts the business of the Company and its Subsidiaries as currently conducted, or (y) which would require the Company or any of its Subsidiaries to pay consideration of more than $50,000,000 after the date of this Agreement; or
(xiii) with any Governmental Entity for the purpose of fulfilling a contract providing for indemnification or order from such Governmental Entity as the ultimate customer, that is material to the conduct of customers the business of the Company and its Subsidiaries as currently conducted, taken as a whole. Each such Contract described in clauses (i)-(xiii), together with each material License-In Agreement and material Contract that relates to Intellectual Property license rights or the operation of the business of the Company or its Subsidiaries, including in connection with the sale of Company Products, in each case, as of the date of this Agreement (other than non-exclusive, “off-the-shelf” software licenses with annual fees of less than $25,000,000 entered in the ordinary course of business), is referred to herein as a “Material Contract.” True and correct copies of each Material Contract (and all material amendments, schedules and exhibits thereto) or, if applicable, form of Material Contract, have been publicly filed as exhibits to the Company SEC Reports or otherwise made available to Parent.
(b) Except as would not have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Material Contract is enforceable against the Company in accordance with its terms and, to the Knowledge of the Company, each other party thereto, and is in full force and effect and (ii) the Company or its Subsidiaries, on the one hand, and, to the Knowledge of the Company, each other party to each Material Contract, on the other hand, have performed all obligations required to be performed by it under such Material Contract in all material respects and, to the Knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or would reasonably be expected to, (A) constitute such a violation or breach; (B) give any Person the right to accelerate the maturity or performance of any Material Contract or (C) give any Person the right to cancel, terminate or modify any Material Contract.
(c) As of the date hereof, the Company is not a party to or bound by any Contract that (i) contains any provisions restricting the right of the Company or any of its Subsidiaries materially (A) to compete or transact in any business or with any Person or in any geographic area, (B) to acquire any material product or other Persons pursuant asset or service from any other Person, or (C) to contracts develop, sell, supply, distribute, support or service any material product or technology or other asset to or for any other Person, (ii) grants exclusive rights to license, market, sell or deliver any Company Product or that contains any “most favored nation” or similar provisions in favor of the other party with total Contract value in excess of $50,000,000 in the prior fiscal year, or (iii) other than Contracts with standards setting bodies or organizations, consortia or similar entities entered into in the ordinary course of business;
(iv) any contract that purports to limit , following the Closing, would result in any material party to such Contract or any other party obtaining a license, right to use or any other claim or right in respect the right of any Intellectual Property of Parent and any of its Subsidiaries (excluding the Company (x) to engage in any line of business, or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IP.
(b) (i) All of the Material Contracts are valid and binding on the Company or its Subsidiaries, enforceable against it in accordance with its terms, and are in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the Company or any Subsidiary nor, to the knowledge of the Company, any third party is in violation of any provision of, or failed to perform any obligation required under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the Company or any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or has received written notice of material breach, of any Material Contract, except as disclosed in Schedule 3.13).
Appears in 2 contracts
Sources: Merger Agreement (NXP Semiconductors N.V.), Merger Agreement (Freescale Semiconductor, Ltd.)
Material Contracts. (a) For purposes Except for this Agreement and for the Contracts filed with the SEC by the Company as exhibits to reports, schedules, forms, statements, and other documents and publicly available on ▇▇▇▇▇ prior to the date of this Agreement, “Material Contract” shall mean the following to which Section 4.01(p) of the Company or any Subsidiary is Disclosure Schedule sets forth a party or any true and complete list, as of their assets are boundthe date of this Agreement, of:
(i) any each Contract that would be required to be filed by the Company as a “material contract” (as such term is defined in pursuant to Item 601(b)(10) of Regulation S-K of under the Securities Act), whether or not filed by the Company with the Commission;
(ii) any employment or consulting contract (in each case with respect Contract to which the Company has continuing obligations as or any of its Subsidiaries is a party that materially restricts the ability of the date hereof) Company or any of its Subsidiaries to compete in any business or with any current person in any geographical area or former grants a material right of first refusal or first offer or similar right (x) executive officer or will impose such limitations on Parent or any of its Affiliates following the Company, (y) member of Offer or the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000Merger);
(iii) each Contract that requires payments by or to the Company and/or its Subsidiaries in an amount in excess of five hundred thousand dollars ($500,000) per annum, except for any contract providing for indemnification such Contract that may be canceled, without penalty or other liability to the Company or any guaranty by the Companyof its Subsidiaries, in each case that is material to the Company, upon notice of 90 days or less other than any contract providing for indemnification of customers sales or other Persons pursuant to contracts entered into purchase orders in the ordinary course of business;
(iv) each Contract relating to indebtedness for borrowed money in excess of five hundred thousand dollars ($500,000) or providing for the creation of any contract that purports to limit in encumbrance upon any of the material respect the right assets of the Company (x) to engage in or any line of business, or (y) to compete with any Person or operate in any geographical locationits Subsidiaries;
(v) each Contract that is a material license, sublicense or other contract pursuant to which the Company or a Subsidiary of the Company is authorized to use any contract relating third party Intellectual Property that is material to the disposition business of the Company, excluding generally commercially available, off-the-shelf software programs, or acquisition, directly or indirectly pursuant to which any third party (by merger or otherwise), x) is authorized to use Material Intellectual Property owned by the Company or any Subsidiary of assets with a fair market value the Company that is material to the business of the Company or (y) has obtained and continues to have exclusive rights in excess of $250,000Material Intellectual Property;
(vi) each Contract with respect to co-promotion of, or collaboration with respect to, any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from product candidate or drug discovery platform, a given third party, which product material joint venture or service is material partnership agreement (excluding information technology Contracts or license or similar agreements with respect to the CompanyIntellectual Property);
(vii) any contract that obligates each Contract which would prohibit the Company to conduct business on an exclusive consummation of the Offer or preferential basis with any third party;the Merger; and
(viii) each Contract with or binding upon the Company or any partnership, joint venture of its Subsidiaries or similar contract any of their respective properties or assets that is material of the type that would be required to be disclosed under Item 404 of Regulation S-K under the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise Securities Act. Each such Contract described in clauses (i)–(xi) above;
through (xii) any contract which is not otherwise described in clauses (i)-(xiviii) above that is material referred to herein as a “Company Material Contract”. Including Contracts filed with the SEC by the Company as exhibits to reports, schedules, forms, statements, and other documents and publicly available on ▇▇▇▇▇ prior to the Company; or
(xiii) any contract relating date of this Agreement, the Company has previously made available to material Parent complete and accurate copies of each Company IP.
(b) (i) All Material Contract. Each of the Company Material Contracts are is valid and binding on the Company or its Subsidiariesthe Subsidiary of the Company party thereto and, enforceable against it in accordance with its termsto the Knowledge of the Company, each other party thereto, and are is in full force and effect, subject except for such failures to laws of general application relating be valid and binding or to bankruptcybe in full force and effect that would not reasonably be expected to have, insolvencyindividually or in the aggregate, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither a Material Adverse Effect. There is no default under any Company Material Contract by the Company or any Subsidiary norof its Subsidiaries or, to the knowledge Knowledge of the Company, by any third other party is in violation thereto, and no event has occurred that with the lapse of any provision of, time or failed to perform any obligation required under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither giving of notice or both would constitute a default thereunder by the Company or any Subsidiary norof its Subsidiaries or, to the knowledge Knowledge of the Company, by any third partyother party thereto, is in breach, or has received written notice of material breach, of any Material Contract, each case except as disclosed would not reasonably be expected to have, individually or in Schedule 3.13the aggregate, a Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (King Pharmaceuticals Inc), Merger Agreement (Alpharma Inc)
Material Contracts. (a) For purposes As of the date hereof, except (x) as filed as exhibits to the Company SEC Documents, and (y) for this AgreementAgreement and the other agreements entered into in connection with the transactions contemplated hereby, “Material Contract” shall mean Section 3.17 of the following to which Company Disclosure Letter sets forth a list of agreements that the Company or any Subsidiary is a its Subsidiaries are party to or any of their assets are boundbound by:
(i) any that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Exchange Act), whether or not filed by the Company with the Commission;
(ii) (A) containing a covenant limiting in any employment or consulting contract (in each case with material respect to which the ability of the Company has continuing obligations as or any Subsidiary of the date hereof) Company to compete or engage in any line of business or to compete with any current or former (x) executive officer of the Company, (y) member of the Board of DirectorsPerson in any geographic area, or (zB) containing any “most favored nation” or “exclusivity” provisions that is material to the Company employee providing for an annual base salary in excess of $200,000and its Subsidiaries taken as a whole;
(iii) any contract providing for indemnification relating to or evidencing indebtedness of the Company or any guaranty Subsidiary of the Company in excess of $1,000,000 (excluding, for the avoidance of doubt, intercompany loans solely between the Company and any of its wholly-owned Subsidiaries or solely between or among any wholly-owned Subsidiaries of the Company);
(iv) that is a material license granted by the Company, in each case that is material Company or any Subsidiary of the Company to the CompanyCompany Intellectual Property, other than any contract providing for indemnification (A) non-exclusive licenses granted to customers in the ordinary course of customers or other Persons pursuant to contracts business, (B) employee, contractors, and consulting agreements entered into in the ordinary course of business;
, and (ivC) any contract that purports to limit material contracts set forth in any material respect the right Section 3.17(a)(i) of the Company (x) to engage in any line of business, or (y) to compete with any Person or operate in any geographical locationDisclosure Schedule;
(v) that is a material license of the rights of any contract third party granted to the Company or any Subsidiary of the Company, including that arises out of any material Intellectual Property-related dispute (including any co-existence agreement), other than (A) Contracts for commercially available software involving payments of less than $1,000,000 annually, (B) employee, contractor, and consulting agreements entered into in the ordinary course of business, and (C) material contracts set forth in Section 3.17(a)(i);
(vi) primarily relating to the acquisition, ownership, or development of any material Company Intellectual Property, other than Contracts with shareholders, directors, officers, employees, contractors and other representatives of the Company that assign rights in Intellectual Property from such individuals to one of the Company and its Subsidiaries;
(vii) that is a collective bargaining agreement, works council agreement, labor agreement, or other Contract with a labor union (each, a “Labor Agreement”);
(viii) that is a settlement, conciliation or similar Contract (A) with any Governmental Entity, (B) pursuant to which the Company or any Company Subsidiary will have any material outstanding obligation or restriction after the date of this Agreement, or (C) that contains payment obligations of the Company or any of its Subsidiaries in excess of $500,000;
(ix) relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), acquisition of assets by the Company of assets or any Subsidiary (A) in the past three years, with a fair market value or purchase price greater than $1,000,000 or (B) pursuant to which any potential earn-out, deferred or contingent payment obligations remain outstanding (excluding indemnification obligations in respect of representations and warranties) or otherwise survive as of the date hereof that would reasonably expected to result in the receipt or making by the Company or any of its Subsidiaries of future payments in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables500,000;
(x) any employee collective bargaining agreement that is a joint venture entity, a legal partnership or other contract similar arrangement (excluding commercial agreements that do not involve the formation of an entity with any labor unionthird Person);
(xi) that provides for indemnification of any other contract under which officer, director or employee by the Company is obligated or any of its Subsidiaries, other than Contracts entered into on substantially the same form as the Company’s standard forms previously made available to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) aboveParent;
(xii) that provides for accelerated vesting in connection with a change of control or otherwise in connection with the Merger or the transactions contemplated hereby (including as a result of any contract which is not otherwise described in clauses (i)-(xi) above that is material to termination of employment following a change of control or the CompanyMerger); orand
(xiii) that obligates the Company or any contract relating Subsidiary to material Company IPmake any future capital investment or capital expenditure outside the ordinary course of business and in excess of $500,000.
(b) (iEach Contract of the type described in Section 3.17(a), whether or not set forth in Section 3.17(a) All of the Company Disclosure Schedule, is referred to herein as a “Material Contract”. Except for Material Contracts that have expired or terminated by their terms, as of the date hereof, all of the Material Contracts are (i) valid and binding on the Company or its Subsidiariesthe applicable Subsidiary of the Company, enforceable against it in accordance with its termsas the case may be, and, to the Knowledge of the Company, each other party thereto, and are (ii) in full force and effect, subject to laws of general application relating to except (A) as may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or applicable Law affecting creditors’ rights generally and rules by general principles of law governing specific performanceequity and (B) as would not, injunctive relief individually or other equitable remediesin the aggregate, and reasonably be expected to limitations have a Company Material Adverse Effect. As of public policythe date hereof, (ii) neither the Company or nor any Subsidiary norof the Company has, and, to the knowledge Knowledge of the Company, any third party is in violation none of the other parties thereto have, breached, violated any provision of, or committed or failed to perform any obligation required under act under, and no event or condition exists, which (with or without notice, lapse of time or both) would constitute a default under, the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the Company or any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or has received written notice of material breach, 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 disclosed of the date hereof, to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any of the foregoing. No event has occurred or circumstances exist that (with or without notice, lapse of time or both) would constitute such a breach or default pursuant to any Material Contract or permit the termination or modification thereof or permit the acceleration or maturity of performance thereof, by the Company or any of its Subsidiaries, or to the Knowledge of the Company, any other party thereto, except for immaterial breaches and defaults. Since June 30, 2025, the Company has not received written notice from any Person that such Person intends to modify in Schedule 3.13any material respect, terminate, or not renew, any Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Damadian Timothy Raymond), Merger Agreement (Fonar Corp)
Material Contracts. No Group Company is a party to or obligated under:
(a) For purposes any contract which obligates the Group for any payments in excess of this Agreement250,000 RMB, “Material Contract” shall mean in the following to aggregate, and which the Company is not terminable by any Group without additional payment or any Subsidiary is a party or any penalty within ninety (90) days of their assets are bound:
(i) any “material contract” (as delivery of notice of such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act), whether or not filed by the Company with the Commissiontermination;
(ii) any employment or consulting contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000;
(iiib) any contract providing for indemnification or which restricts any guaranty by the Company, in each case that is material to the Company, other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course of business;
(iv) any contract that purports to limit in any material respect the right of the Group Company (x) to engage from engaging in any line of business, business or (y) to compete competing with any Person or operate in any geographical locationgeographic region;
(vc) any partnership, 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 which is not wholly-owned by one or more Group Companies;
(d) any contract relating (other than among the Group Companies) under which Indebtedness in excess of 250,000 RMB is outstanding or pursuant to which any property or asset of the one or more Group Companies having a book value of more than 250,000 RMB is mortgaged, pledged or otherwise subject to an Encumbrance or any contract restricting the incurrence of Indebtedness or the incurrence of Encumbrances or restricting the payment of dividends;
(e) any contract entered into within three (3) years prior to the disposition date hereof for the acquisition or acquisitiondisposition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value or capital stock or other equity interests of another Person for aggregate consideration in excess of $250,000250,000 RMB and any term sheets or letters of intent in effect and not expired as of the date hereof, whether or not binding, relating to any of the foregoing in this clause (e);
(vif) other than contracts for ordinary repair and maintenance, any contract relating to the development or construction of, or additions or expansions to, the Leased Real Properties, under which the Group Companies have, or expect to incur, in the aggregate one or more obligations in excess of 250,000 RMB in the aggregate that have not been satisfied as of the date hereof;
(g) any contract to which any Group Company has continuing indemnification obligations or potential liability under any purchase price adjustment that, in each case, could reasonably be expected to result in future payments by the Group Companies in the aggregate, of more than 250,000 RMB or any contract relating to the settlement or proposed settlement of any Legal Action, which involves the issuance of equity securities or payment of an amount, in any such case, having a value of more than 250,000 RMB;
(h) any contract for the employment of, or receipt of any services from, any director, officer or other employee on a full-time, part-time, consulting or other basis providing annual case compensation from the Group Companies in excess of 250,000 RMB in the aggregate;
(i) any contract which relates to any Intellectual Property;
(j) any contract (other than contracts referenced in clause (a) through (i) of this Section 4.15) which by its terms call for payments by one or more of the Group Companies in excess of 250,000 RMB in the aggregate;
(k) any contract with any current officer or director of any Group Company or any Affiliates of any Group Company, including any JZH Holder; or
(l) any contract that requires a consent to or otherwise contains any a provision that requires the purchase relating to a “change of all of the Company’s requirements for a given product control’, or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates would prohibit or delay the consummation of the transactions contemplated by this Agreement, or that would trigger, give rise to, accelerate or augment any liabilities or terminate or modify any rights of any Group Company to conduct business on an exclusive or preferential basis with any third party;
as a result of the consummation of the transactions contemplated hereby (viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise contracts described in clauses clause (i)–(xa) above;
through (xiik) any contract which is not otherwise described of this Section 4.15 and those agreements set forth in clauses (i)-(xiSchedule 4.12(a) above that is material to the Company; or
(xiii) any contract relating to material Company IP.
(b) (i) All of the Disclosure Schedules together with all exhibits and schedules thereto collectively, the “Material Contracts are valid and binding on the Company or its Subsidiaries, enforceable against it in accordance with its terms, and are in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the Company or any Subsidiary nor, to the knowledge of the Company, any third party is in violation of any provision of, or failed to perform any obligation required under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the Company or any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or has received written notice of material breach, of any Material Contract, except as disclosed in Schedule 3.13Contracts”).
Appears in 2 contracts
Sources: Share Exchange Agreement (SolarMax Technology, Inc.), Share Exchange Agreement (SolarMax Technology, Inc.)
Material Contracts. (a) For purposes of Except for (i) this Agreement, (ii) agreements or Contracts contemplated by this Agreement or the Transactions and (iii) the Contracts specifically identified in Schedule 3.10 of the Company Disclosure Letter (with each of such Contracts specifically identified under subsection(s) of such Schedule 3.10 that correspond to the Subsection or Subsections of this Section 3.10(a) applicable to such Contract), neither the Company nor any Subsidiary is a party to or bound by any of the following Contracts (each, a “Material Contract”):
(i) (A) any management service, partnership or joint venture Contract, (B) any Contract that involves a sharing of revenues, profits, cash flows, expenses or losses with other Persons and (C) any Contract that involves the payment of royalties to any other Person;
(ii) any Contract with a (A) Significant Customer or (B) Significant Supplier;
(iii) any continuing Contract for the purchase, sale or license of materials, supplies, equipment, services, software, Intellectual Property or other assets involving, in the case of any such Contract, payments to the Company or any Subsidiary of more than $150,000 per year, or by the Company or any Subsidiary of more than $150,000 per year;
(iv) any Contract that expires or may be renewed at the option of any Person other than the Company or its Subsidiaries so as to expire more than one year after the Agreement Date;
(v) any distributor, original equipment manufacturer, reseller, value added reseller, sales, advertising, agency or manufacturer’s representative Contract;
(vi) any Contract (A) pursuant to which any other party is granted exclusive rights or “most favored party” shall mean rights of any type or scope with respect to any of the following Company Products or Company Intellectual Property, (B) containing any non-competition covenants, exclusivity or other similar restrictions relating to the Company Products or Company-Owned Intellectual Property, or (C) that limits or would limit the freedom of the Company or any of its successors, assigns or Affiliates to (1) engage or participate, or compete with any other Person, in any line of business, market or geographic area with respect to the Company Products or the Company Intellectual Property or (2) sell, distribute or manufacture any products or services or to purchase or otherwise obtain any software, components, parts or services;
(vii) all licenses, sublicenses and other Contracts to which the Company or any Subsidiary is a party or any of their assets are bound:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act), whether or not filed by the Company with the Commission;
(ii) any employment or consulting contract (in each case with respect and pursuant to which the Company has continuing obligations as of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000;
(iii) any contract providing for indemnification or any guaranty by the CompanySubsidiary acquired or is authorized to use any Third-Party Intellectual Property, in each case that is material to the Company, other than any contract providing except for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course of business;
(iv) any contract that purports to limit in any material respect the right of the Company (x) to engage in any line of business, or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third partyStandard Inbound IP Licenses;
(viii) any partnershiplicense, joint venture sublicense or similar contract that other Contract to which the Company or a Subsidiary is material a party and pursuant to which any Person is authorized to use any Company-Owned Intellectual Property Rights except for Standard Outbound IP Licenses in which the Companyaggregate value of such license is less than $150,000;
(ix) any mortgageslicense, indentures, guarantees, loans or credit agreements, security agreements sublicense or other contracts, in each case relating Contract pursuant to indebtedness for borrowed money, whether as borrower which the Company or lender, in each case in excess any Subsidiary has agreed to any restriction on the right of $250,000, the Company to use or enforce any Company-Owned Intellectual Property Rights (excluding nonexclusive rights or licenses) or pursuant to which the Company or any Subsidiary agrees to encumber (other than accounts receivables and payablesPermitted Encumbrances), transfer or sell rights in or with respect to any Company-Owned Intellectual Property;
(x) any Contract providing for the development of any software, technology or Intellectual Property Rights, independently or jointly, either by or for the Company or any Subsidiary (other than employee collective bargaining agreement or other contract invention assignment agreements and consulting agreements with any labor unionAuthors on the Company’s standard form of agreement, copies of which have been provided to Parent);
(xi) any confidentiality, secrecy or non-disclosure Contract other contract under which than any such Contract entered into by the Company is obligated to make payment or incur costs any Subsidiary in excess the ordinary course of $250,000 in any year and which is not otherwise described in clauses (i)–(x) abovebusiness consistent with past practice;
(xii) any contract agreement of indemnification or warranty or any Contract containing any support, maintenance or service obligation or cost on the part of the Company or any Subsidiary (other than under its unmodified form of standard customer or distributor agreement, the form of which is not otherwise described in clauses (i)-(xi) above that is material has been provided to the Company; orParent);
(xiii) any contract settlement agreement with respect to any Action;
(xiv) any standstill or similar agreement containing provisions prohibiting a third party from purchasing Equity Interests of the Company or assets of the Company or any Subsidiary or otherwise seeking to influence or exercise control over the Company or any Subsidiary;
(xv) any Contract or plan (including any stock option, merger and/or stock bonus plan) relating to the sale, issuance, grant, exercise, award, purchase, repurchase or redemption of any shares of Company Capital Stock or any other securities of the Company or any Subsidiary or any options, warrants, convertible notes or other rights to purchase or otherwise acquire any such shares of stock, other securities or options, warrants or other rights therefor, except for the repurchase rights (if any) disclosed on Schedule 3.5(a), Schedule 3.5(b)-1 and Schedule 3.5(c) of the Company Disclosure Letter;
(xvi) any Contract with any labor union or any collective bargaining agreement or similar Contract with its Employees;
(xvii) any separation agreement, settlement agreement with any Employee, under which the Company or any Subsidiary has any current actual or potential Liability, as well as any settlement agreement, consent decree, or other similar agreement with any Governmental Entity;
(xviii) any employment Contract or offer letter with any Employee, or beneficial owner of more than 5% of the total shares of Company Capital Stock that is not immediately terminable at-will by the Company without notice, severance, or other cost or Liability;
(xix) any Contract providing for retention payments, change of control payments, severance, accelerated vesting or any other payment or benefit that may or will become due as a result of the Merger;
(xx) any trust indenture, mortgage, promissory note, loan agreement or other 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;
(xxi) any Contract of guarantee, support, indemnification, assumption or endorsement of, or any similar commitment with respect to, the Liabilities or indebtedness of any other Person, including any Contract mortgaging, pledging or otherwise placing an Encumbrance (other than Permitted Encumbrances) on any material portion of the assets of the Company;
(xxii) any Contract for capital expenditures in excess of $50,000 in the aggregate;
(xxiii) any Contract pursuant to which the Company IP.or any Subsidiary is a lessor or lessee of any real property or any machinery, equipment, motor vehicles, office furniture, fixtures or other tangible personal property involving expenditures in excess of $50,000 per annum;
(xxiv) any Contract with any investment banker, broker, advisor or similar party retained by the Company, in connection with this Agreement and the Transactions;
(xxv) any Contract pursuant to which the Company or any Subsidiary has acquired a business or entity, or assets of a business or entity, whether by way of merger, consolidation, purchase of stock, purchase of assets, exclusive license or otherwise, or any Contract pursuant to which it has any material ownership interest in any other Person;
(xxvi) any Contract with any Governmental Entity, any Company Authorization, or any Contract with a government prime contractor, or higher-tier government subcontractor, including any indefinite delivery/indefinite quantity contract, firm-fixed-price contract, schedule contract, blanket purchase agreement, or task or delivery order (each a “Government Contract”); or
(xxvii) any Contract entered into by the Company or any Subsidiary with any customer or reseller of the Company or any Subsidiary that provide for obligations by the Parent or its successors that do not terminate within one year following the Closing (“Long Term Customer Contracts”);
(b) (i) All Material Contracts are in written form. The Company and each Subsidiary have performed all of the material 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. Each of the Material Contracts are valid and binding on the Company or its Subsidiaries, enforceable against it in accordance with its terms, and are is in full force and effect, subject only to laws the effect, if any, of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium applicable bankruptcy and other similar laws relating to or Law affecting creditors’ the rights of creditors generally and rules of law Law governing specific performance, injunctive relief or and other equitable remedies. There exists no default or event of default or event, and occurrence, condition or act, with respect to limitations of public policy, (ii) neither the Company or any Subsidiary nor, or to the knowledge Knowledge of the Company, with respect to any other contracting party, that, with the giving of notice, the lapse of time or the happening of any other event or condition, would reasonably be expected to (i) become a default or event of default under any Material Contract or (ii) give any third party is in violation of (A) the right to declare a default or exercise any provision of, or failed to perform any obligation required remedy under the provisions of, any Material Contract, except as disclosed (B) the right to a rebate, chargeback, refund, credit, penalty or change in Schedule 3.13 and delivery schedule under any Material Contract, (iiiC) neither the right to accelerate the maturity or performance of any obligation of the Company under any Material Contract, or (D) the right to cancel, terminate or modify any Material Contract. Neither the Company nor any Subsidiary has received any notice or other communication regarding any actual or possible violation or breach of, default under, or intention to cancel or modify any Material Contract. None of the Company or any Subsidiary nor, has any Liability for renegotiation of Government Contracts. The Company has heretofore made available to Parent in the knowledge Data Room (1) correct and complete copies of the Company, any third party, is in breach, or has received each written notice Material Contract and (2) summaries of material breach, of any each oral Material Contract, except as disclosed in Schedule 3.13together with any and all material amendments and supplements thereto and “side letters” and similar documentation relating thereto.
Appears in 2 contracts
Material Contracts. (ai) For purposes Except for Contracts (including all amendments and modifications thereto) filed as exhibits to the Company Reports as of the date of this Agreement, “Material Contract” shall mean the following to which any Benefit Plan set forth in Section 5.1(i)(i) of the Company Disclosure Schedule (unless described in Clause (J), (K) or (L) below) or as set forth in Section 5.1(k)(i) of the Company Disclosure Schedule, as of the date of this Agreement, neither the Company nor any Subsidiary of its Subsidiaries is a party to and none of the Company, any of its Subsidiaries or any of their respective assets or properties are bound:bound by any Contract described by this Section 5.1(k)(i):
(iA) any that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K S-‐K of the Securities Exchange Act), whether or not filed by the Company with the Commission;
(iiB) that contains (1) any employment noncompete or consulting contract (in each case with respect exclusivity provisions to which the Company has continuing obligations as or any of its Subsidiaries is subject that restricts or purports to restrict the ability of the date hereofCompany or any of its Subsidiaries to engage or compete in any line of business or geographic area or to obtain or sell any products or services to or from any other Person (or would so restrict or purport to restrict the Surviving Corporation or any of its Affiliates following the consummation of the Merger) with or (2) any current “most favored nation” or former most favored customer provision, minimum purchase or “take-or-pay” obligations, or rights of first or last offer, negotiation or refusal, in each case, to which the Company or any of its Subsidiaries is subject (xor to which the Surviving Corporation or any of its Affiliates would be subject following the consummation of the Merger);
(C) executive officer that provides for or relates to a partnership, joint venture, collaboration or similar material arrangement (other than agreement entered into between the Company or any its wholly-owned Subsidiaries, on the one hand, and another wholly-owned Subsidiary of the Company, on the other hand);
(yD) member that is (1) an indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other agreement providing for or guaranteeing Indebtedness of any Person, except for any Contract solely among or between the Board Company and any of Directorsits wholly-owned Subsidiaries, or (z2) a hedging, derivative, swaps, currency or commodity derivatives or other similar Contract;
(E) that (1) relates to a closed or pending acquisition or disposition of any Person, business, assets or property (including real property) (whether by merger, sale of stock, sale of assets or otherwise) that would have required the consent of Parent under Section 6.1(b) if it had been entered into or completed after the date of this Agreement or (2) includes any “earnout” or other contingent or deferred payment obligation of the Company employee providing for an annual base salary and its Subsidiaries in excess of $200,000100,000 that has not been satisfied in full;
(iiiF) any contract providing for indemnification that is a settlement agreement that (1) requires payment by the Company or any guaranty by of its Subsidiaries after the Companydate hereof in excess of $50,000, in each case that is material to the Companyor (2) imposes non-monetary obligations or restrictions, other than non-de minimis obligations or restrictions, on the Company or any contract providing for indemnification of customers its Subsidiaries applicable after the date of this Agreement;
(1) that is reasonably expected to involve expenditures by the Company or other Persons any of its Subsidiaries of more than $50,000, or (2) that is reasonably expected to involve payments to the Company or any of its Subsidiaries of more than $100,000, in the case of each of subclauses (1) and (2), individually or in the aggregate with respect to such Contract or series of related Contracts, in any fiscal year (or that previously involved such expenditures or payments in the Company’s most recently completed fiscal year);
(1) pursuant to contracts which the Company or any of its Subsidiaries licenses or grants rights to any Person, or licenses or receives a grant of right from any Person with respect to any material Intellectual Property Right (other than (i) non-exclusive licenses for commercially available software that is made available for a total cost of less than $50,000 and Open Source Software, (ii) non-exclusive licenses granted to customers in the ordinary course of business, substantially in the form of the Company’s or any of its Subsidiaries’ forms of customer agreement, copies of which have been provided to Parent, (iii) referral agreements and reseller agreements in the ordinary course of business, substantially in the form of the Company’s or any of its Subsidiaries’ forms of referral agreement or reseller agreement, copies of which have been provided to Parent, (iv) nondisclosure agreements entered into in the ordinary course of business, and (v) agreements where any license of any Intellectual Property Rights is incidental to such agreement, such as licenses to use feedback and suggestions and licenses authorizing the use of brand materials for marketing purposes), (2) pursuant to which a Person has developed or been engaged to develop any material Intellectual Property Rights for the Company or any of its Subsidiaries (other than Contracts with employees or independent contractors pursuant to which Intellectual Property Rights are assigned to the Company or any of its Subsidiaries substantially in the form of the Company’s or any of its Subsidiaries’ forms of employee confidentiality and invention assignment agreement and contractor agreement (copies of which have been made available to Parent) or have vested in the Company or any of its Subsidiaries under applicable Law), or (3) that is entered into to settle or resolve any Intellectual Property Right-related dispute or otherwise affecting the Company’s or any of its Subsidiaries right to use or enforce any material Owned IP, including settlement agreements, coexistence agreements, covenant not to sue agreements, and consent to use agreements;
(ivI) to or by which the Company or any of its Subsidiaries is a party or bound that is with any Governmental Authority or any Person that is a prime contractor or subcontractor in respect of a Contract with any Governmental Authority;
(J) that is an employment agreement or consulting agreement, in either case, with any Service Provider with annual compensation in excess of $150,000 or that provides for severance payments, change of control payments or advance notice of termination in excess of 30 days;
(K) that contains a put, call or similar right pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, (1) any contract Company Securities, (2) any equity interests of any Person or (3) any assets that purports have a fair market value or purchase price of more than $100,000 (other, in case of (1), (2) and (3), than the Company Equity Plans, the award agreements with respect to limit the Company Equity Awards set forth in Section 5.1(b)(ii) of the Company Disclosure Schedule and the Company Warrants set forth in Section 5.1(b)(iii) of the Company Disclosure Schedule);
(L) that (1) is with any material respect Affiliate (other than a wholly-owned Subsidiary of the right Company), director or executive officer of the Company (x) to engage as such term is defined in any line of businessthe Exchange Act), or Person holding 5% or more of the shares of capital stock of the Company (yother than any Benefit Plan), (2) indemnifies any director or executive officer of the Company or any of its Subsidiaries (other than any provisions set forth in the certificate of incorporation or bylaws the Company or comparable organizational documents of its Subsidiaries) or (3) relates to compete the acquisition, issuance or transfer of, or any Person’s rights with respect to, any Person Company Securities (other than the Company Equity Plans, the award agreements with respect to the Company Equity Awards set forth in Section 5.1(b)(ii) of the Company Disclosure Schedule, the Company Warrants set forth in Section 5.1(b)(iii) of the Company Disclosure Schedule and any provisions set forth in the certificate of incorporation or operate in any geographical locationbylaws of the Company or comparable organizational documents of its Subsidiaries);
(vM) that requires any contract relating to the disposition capital commitment or acquisition, directly capital expenditure (or indirectly (by merger or otherwise), series of capital expenditures) by the Company or any of assets with a fair market value its Subsidiaries after the date of this Agreement in an amount in excess of $250,000;
(vi) any contract that contains any provision that requires 100,000 in the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Companyaggregate; or
(xiiiN) any contract relating to material Company IPthat is a Real Property Lease.
(b) (iii) All of the Contracts required to be set forth on Section 5.1(k)(i) of the Company Disclosure Schedule (or that would be required to be set forth on Section 5.1(k)(i) of the Company Disclosure Schedule but for the final parenthetical of Clause (K) or (L) above) or filed as exhibits to the Company Reports as of the date of this Agreement are collectively referred to herein as the “Material Contracts.” The Company has made available to Parent prior to the date of this Agreement accurate and complete copies of all Material Contracts are required to be identified in Section 5.1(k)(i) of the Company Disclosure Schedule, including all amendments or modifications thereto, as in effect as of the date of this Agreement.
(iii) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, each Material Contract is a valid and binding on agreement of the Company or its SubsidiariesSubsidiaries party thereto, as the case may be, enforceable against it the Company or such Subsidiaries, and, to the Knowledge of the Company, each other party thereto in accordance with its terms, and are is in full force and effect, subject in each case to laws the Bankruptcy and Equity Exception (and subject to the termination or expiration of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules any such Material Contract after the date of law governing specific performance, injunctive relief or other equitable remediesthis Agreement in accordance with its terms). Except as has not had, and would not reasonably be expected to limitations have, individually or in the aggregate, a Material Adverse Effect, neither the Company nor any of public policyits Subsidiaries and, to the Knowledge of the Company, no other party thereto is (with or without notice or lapse of time or both) in default or breach under the terms of any such Material Contract and no event has occurred that (with or without notice or lapse of time or both) will, or would reasonably be expected to, (iiA) neither constitute such a violation or breach, (B) result in the acceleration of the performance of or rights in any Material Contract, or (C) give any Person the right to cancel, terminate or modify in a manner adverse to the Company or any Subsidiary norof its Subsidiaries any Material Contract. Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, since February 1, 2022 through the date of this Agreement, neither the Company nor any of its Subsidiaries has received any written or, to the knowledge Knowledge of the Company, any third party is in violation oral notice or communication of any provision actual or alleged violation or breach of, default under or failed intention to perform any obligation required under the provisions ofcancel, terminate, adversely modify or not renew, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the Company or any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or has received written notice of material breach, of any Material Contract, except as disclosed in Schedule 3.13.
Appears in 2 contracts
Sources: Merger Agreement (Streamline Health Solutions Inc.), Merger Agreement (Streamline Health Solutions Inc.)
Material Contracts. (a) For purposes Section 4.12(a) of this Agreement, “Material Contract” shall mean the Company Disclosure Letter identifies each of the following Contracts to which the a Company Entity or any Company Subsidiary is a party as of the date of this Agreement other than any Contract that is or any constitutes (1) a nondisclosure agreement entered into (x) in the ordinary course of their assets are bound:business or (y) in connection with discussions, negotiations, and transactions related to this Agreement, other Acquisition Proposals, or other potential strategic transactions or (2) a Company Plan (the Contracts required to be set forth on such schedule, the “Material Contracts”):
(i) other than any Media Agreement or any Talent Agreement, any Contract that limits the freedom or right of a Company Entity or any Company Subsidiary to sell, distribute, produce or manufacture any product, project or service in a manner that would be material to the Company Entities and the Company Subsidiaries, taken as a whole, either by (A) materially limiting the freedom or right of the Company Entities and the Company Subsidiaries from engaging in any line of business or to compete with any other Person in any location or line of business or (B) providing “most favored nation” rights (including with respect to pricing) or exclusivity obligations or restrictions, in each case, in favor of a party other than the Company Entities or the Company Subsidiaries;
(ii) other than any Media Agreement or Talent Agreement, any Contract that requires by its terms or is reasonably likely to require, during the remaining term of such Contract, annual consideration to or from a Company Entity or any Company Subsidiary in an amount having an expected value in excess of $20,000,000 in the fiscal year ending December 31, 2024 (each, a “Specified Contract”);
(iii) other than any Media Agreement or any Talent Agreement, any Contract under which a Company Entity or any Company Subsidiary (A) licenses or sublicenses (or grants rights in or to use) Intellectual Property Rights that are material contract” to the business of the Company Entities and the Company Subsidiaries, taken as a whole, to any third party, (B) licenses or sublicenses (or is granted rights in or to use) Intellectual Property Rights from any third party that are material to the business of the Company Entities and the Company Subsidiaries, taken as such term a whole, or (C) has entered into any covenant not to sue or assert immunity from suit with respect to material Intellectual Property Rights, including any material coexistence agreements and material settlement agreements (in each case, other than (v) non-disclosure agreements, (w) non-exclusive licenses granted by a Company Entity or a Company Subsidiary in the ordinary course of business to end users in connection with the provision or sale of any product or service, (x) non-exclusive licenses granted to a Company Entity or a Company Subsidiary by any customer, employee, consultant, or independent contractor of a Company Entity or a Company Subsidiary in the ordinary course of business, (y) licenses of commercially available Software licensed in object code form only granted to a Company Entity or a Company Subsidiary, or (z) licenses to open source, public, or freeware Software, or other materials), in each case, which Contract is defined material to the business of the Company Entities or the Company Subsidiaries, taken as a whole;
(iv) any Contract relating to indebtedness for borrowed money in excess of $10,000,000 (whether incurred, assumed, guaranteed, or secured by any asset) of a Company Entity or any Company Subsidiary;
(v) other than any Media Agreement or any Talent Agreement, any Contract constituting a joint venture, partnership, or similar arrangement that includes the sharing of profits and losses with another Person, in each case, that is material to the business of the Company Entities and the Company Subsidiaries, taken as a whole;
(vi) any Contract that prohibits (A) the payment of dividends or distributions in respect of the capital stock of the Company or equity interests of any of Manager, OpCo or any Company Subsidiary, (B) the pledging of the capital stock or other equity interests of a Company Entity or a Company Subsidiary or (C) the issuance of any guaranty by any Company Entity;
(vii) any Contract that is currently in effect and has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10601(b)(10)(i) or (ii) of Regulation S-K under the Securities Act or that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act), whether or not filed by the Company with the Commission;
(iiviii) any employment or consulting contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000;
(iii) any contract providing for indemnification or any guaranty by the Company, in each case Contract that is material to the Companybusiness of the Company Entities and the Company Subsidiaries, taken as a whole, that is a Related Party Transaction other than offer letters that can be terminated at will without severance obligations;
(ix) other than in connection with any Permitted Content Activity, (A) any Contract for the sale, license, lease or sublease of any material Owned Real Property or (B) any Material Lease;
(x) any Contract since the Reference Date, that relates to the acquisition or disposition by a Company Entity or any Company Subsidiary, involving consideration in excess of $35,000,000, of any Person or other business organization, division, or business of any Person (whether by merger or consolidation, by the purchase of a controlling equity interest in or substantially all of the assets of such Person, or by any other manner);
(xi) any Contract with any Governmental Authority under which payments in excess of $20,000,000 were received by a Company Entity or any Company Subsidiary in the most recently completed fiscal year;
(xii) other than any Media Agreement or Talent Agreement, any Contract that is material to the Company Entities and the Company Subsidiaries, taken as a whole, pursuant to which a Company Entity or any Company Subsidiary (A) has continuing guarantee, “earn-out,” or similar contingent payment obligations (other than indemnification or performance guarantee obligations provided for in the ordinary course of business), including (x) milestone or similar payments, including upon the achievement of regulatory or commercial milestones or (y) payment of royalties or other amounts calculated based upon any revenue or income of a Company Entity or any Company Subsidiary, in each case, that could result in payments in excess of $20,000,000 or (B) grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to exclusively license, or any other similar rights with respect to any product or service of the Company Entities or the Company Subsidiaries, or any Company Intellectual Property that is material to the business of the Company Entities and the Company Subsidiaries, taken as a whole, in each case, involving annual consideration in excess of $20,000,000 in the fiscal year ending December 31, 2024;
(xiii) any Contract since the Reference Date, the primary purpose of which is to provide for indemnification or guarantee of the obligations of any other Person that would be material to the business of the Company Entities and the Company Subsidiaries, taken as a whole, other than any contract providing for indemnification of customers or other Persons pursuant to contracts such Contracts entered into in the ordinary course of business;
(ivxiv) any contract that purports hedging, swap, derivative, or similar Contract;
(xv) other than any Media Agreement or any Talent Agreement, any Contract material to limit in any material respect the right business of the Company (x) Entities and the Company Subsidiaries, taken as a whole, that requires the services, performance or involvement of any particular employee or service provider of a Company Entity or any Company Subsidiary or that otherwise contains a so-called “key person”, “essential element” or “of the essence” provision with respect to engage in any line of business, or (y) to compete with any Person or operate in any geographical locationsuch Person;
(vxvi) any contract relating Media Agreement that involves either annual consideration to or from a Company Entity or any Company Subsidiary of $20,000,000 or more (in cash or kind);
(xvii) any settlement, conciliation or similar agreement (A) pursuant to which a Company Entity or any Company Subsidiary is obligated after the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company date of assets with a fair market value this Agreement to pay consideration in excess of $250,00010,000,000 or (B) that would otherwise materially limit the operation of the Company Entities and the Subsidiaries as currently operated;
(vixviii) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product stockholders’ agreement, proxy, voting trust agreement or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture registration rights agreement or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements arrangements or other contracts, in each case commitments relating to indebtedness for borrowed money, whether as borrower any equity securities of a Company Entity or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract Contract relating to material disposition, voting or dividends with respect to any equity securities of a Company IPEntity.
(b) The Company has made available to the Parent Entities and the Merger Subs or their respective Representatives an accurate and complete copy of each Material Contract (except with such redactions as may be clearly marked on such copies) as in effect as of the date of this Agreement. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect: (i) All none of the Material Contracts are valid and binding on Company Entities or the Company or its Subsidiaries, nor, to the Knowledge of the Company, any other party to each such Contract, are in breach of or default under any Material Contract and none of the Company Entities or the Company Subsidiaries, nor, to the Knowledge of the Company, any other party to each such Contract, have taken or failed to take any action, and no event has occurred, that with or without notice, lapse of time, or both would constitute a breach of or default under any Material Contract, (ii) each Material Contract is, with respect to a Company Entity or any Company Subsidiary (as applicable) and, to the Knowledge of the Company, any other party to such Contract, a valid agreement, binding, and in full force and effect, (iii) to the Knowledge of the Company, each Material Contract is enforceable against it by a Company Entity or a Company Subsidiary (as applicable) in accordance with its terms, and are in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remediesthe Enforceability Exceptions, and to limitations (iv) since the Reference Date, through the date of public policythis Agreement, (ii) neither none of the Company Entities or the Company Subsidiaries have received any Subsidiary nor, to written notice regarding any violation or breach or default under any Material Contract that has not since been cured. To the knowledge Knowledge of the Company, since the Reference Date, no counterparty to any third party is in violation of any provision ofMaterial Contract has (A) canceled or otherwise terminated, or failed threatened in writing to perform cancel or otherwise to terminate, its relationship with a Company Entity or any obligation required under Company Subsidiary (as applicable) or (B) decreased materially or threatened to decrease materially or limit materially, the provisions of, amount of business that any Material Contract, except as disclosed such counterparty presently engages in Schedule 3.13 and (iii) neither or presently conducts with the Company or any Subsidiary norEntities and the Company Subsidiaries other than, in each case, as would not reasonably be expected to the knowledge of the Company, any third party, is in breach, or has received written notice of material breach, of any have a Material Contract, except as disclosed in Schedule 3.13Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Endeavor Group Holdings, Inc.), Merger Agreement (Emanuel Ariel)
Material Contracts. (a) For purposes As of the date of this Agreement, none of the Company, any of its subsidiaries or their respective properties or other assets is a party to or bound by any Contract (other than Company Plans):
(i) pursuant to which the Company, any of its subsidiaries or any other party thereto has material continuing obligations, rights or interests and including annual payments by the Company and its subsidiaries of $100,000 or more relating to the research, development, clinical trial, distribution, supply, manufacture, marketing or co-promotion of, or collaboration with respect to, any product candidate for which the Company or any of its subsidiaries is currently engaged in research or development, including but not limited to: (A) material manufacture or supply services or material Contracts with contract research organizations for clinical trials-related services; (B) material transfer Contracts for pre-clinical products or clinical products of the Company or any of its subsidiaries with commercial, pharmaceutical or biotechnology companies; (C) Contracts involving the payment of royalties or other amounts calculated based upon the revenues or income of the Company or any of its subsidiaries or income or revenues related to any clinical product candidate of the Company or any of its subsidiaries; and (D) Contracts pursuant to which the Company has minimum purchase or “Material Contractmost favored nation” shall mean obligations;
(ii) that contains any non-compete or exclusivity provision or limits or purports to limit, curtail or restrict the ability of the Company or any of its subsidiaries (or which following the consummation of the Merger and the other transactions contemplated hereby would reasonably be expected to limit the ability of the Surviving Corporation) in a manner that is material to the business of the Company and its subsidiaries, taken as a whole, as currently conducted (A) to compete in any line of business, in any geographic area or with any Person and (B) to sell to or purchase from any other Person;
(iii) that requires or permits the Company, or any successor to, or acquirer of, the Company, to make any payment to another Person, or requires the consent of another Person, in each case in connection with a change of control of the Company or gives another Person a right to receive or elect to receive a change of control payment;
(iv) that is a joint-venture or partnership agreement or other similar agreement or arrangement;
(v) that (A) relates to the disposition or acquisition by the Company or its subsidiaries of a material amount of assets or equity interests in any Person (1) after the date of this Agreement, other than the sale of inventory in the ordinary course of business consistent with past practice, or (2) which contains any ongoing obligations (including sale of inventory, indemnification, purchase price adjustment, “earn-out” or other contingent obligations) that are still in effect that are reasonably likely to result in claims in excess of $50,000 or (B) pursuant to which the Company or its subsidiaries will acquire or dispose of any Subsidiary material ownership interest in any other person or other business enterprise other than the Company’s subsidiaries;
(vi) that is a party loan or credit agreement, indenture, note or other Contract or instrument relating to or evidencing Indebtedness for borrowed money (including any guarantee thereto) or any Contract pursuant to which Indebtedness for borrowed money may be incurred or guaranteed, including any Contract that is a financial derivatives master agreement or confirmation, or futures account opening agreement and/or brokerage statement, evidencing financial hedging or similar trading activities;
(vii) that is a mortgage, pledge, security agreement, deed of trust, capital lease or similar agreement that creates or grants a Lien on any material property or asset of the Company or any of their assets are bound:its subsidiaries, in each case involving annual payments of more than $100,000;
(iviii) that is a Collective Bargaining Agreement;
(ix) that is a Contract providing for the issuance or sale of any equity securities of the Company or any of its subsidiaries;
(x) That is a settlement agreement, or agreement entered into in connection with a settlement agreement, corporate integrity agreement, consent decree, deferred prosecution agreement, or other similar type of agreement with any Governmental Authority or any other Person that has existing or contingent performance obligations;
(xi) that is a Contract granting a right of first refusal or first negotiation to any third party over any material assets of the Company;
(xii) that is a Contract, including any ancillary or subagreements thereto, with any contract research organization or other agreement, including any ancillary or subagreements thereto, with a third party which is conducting one or more clinical studies on behalf of the Company or its subsidiaries and is reasonably expected to require payment of more than $50,000 within twelve (12) months prior to or after the date of this Agreement;
(xiii) involves the use or license by the Company or its subsidiaries of any material Software used by the Company or its subsidiaries as presently conducted (other than non-customized Software subject to shrink-wrap, click-wrap and off-the-shelf or commercially available Software);
(xiv) is an IP Agreement of the type set forth in Section 3.15(f) or 3.15(g) of the Company Disclosure Letter or involves the joint development of products or technology with a third party that is material to the Company and its subsidiaries, taken as a whole; or
(xv) that is any Contract that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities ActSEC).
(xvi) All Contracts, arrangements, commitments or understandings described in this Section 3.12(a), whether together with each Company Real Property Lease, shall be collectively referred to as the “Company Material Contracts.”
(b) Except, in each case, as has not been and would not reasonably be expected to be, individually or not filed by in the aggregate, material to the Company with the Commission;
(ii) any employment or consulting contract (in each case with respect to which the Company has continuing obligations and its subsidiaries, taken as a whole, as of the date hereof, (i) each of the Company Material Contracts is valid, binding and in full force and effect with any current or former (x) executive officer respect to the Company and its subsidiaries party thereto and, to the Knowledge of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000;
(iii) any contract providing for indemnification or any guaranty by the Companyeach other party thereto and enforceable, in each case that is all material to the Companyrespects, other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course of business;
(iv) any contract that purports to limit in any material respect the right of the Company (x) to engage in any line of business, or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IP.
(b) (i) All of the Material Contracts are valid and binding on the Company or its Subsidiaries, enforceable against it in accordance with its terms, terms by the Company and are in full force and effect, its subsidiaries party thereto (subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium the Bankruptcy and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, Equity Exception); (ii) neither the Company and each of its subsidiaries has performed all material obligations required to be performed by them under the Company Material Contracts to which they are parties; (iii) to the Knowledge of the Company, each other party to a Company Material Contract has performed all material obligations required to be performed by it under such Company Material Contract and (iv) no party to any Company Material Contract has given the Company or any Subsidiary of its subsidiaries written notice of its intention to cancel, terminate, change the scope of rights under or fail to renew any Company Material Contract and neither the Company nor any of its subsidiaries, nor, to the knowledge Knowledge of the Company, any third other party is in violation of to any provision of, or failed to perform any obligation required under the provisions of, any Company Material Contract, except as disclosed has repudiated in Schedule 3.13 and (iii) neither writing any material provision thereof. Neither the Company or nor any Subsidiary nor, to the of its subsidiaries has knowledge of the Company, any third party, is in breachof, or has received written notice of, any violation or default under any Company Material Contract or any other Contract to which it is a party or by which it or any of its material breach, of any Material Contractproperties or assets is bound, except for violations or defaults that have not been and would not reasonably be expected to be, individually or in the aggregate, material to the Company and its subsidiaries, taken as disclosed in Schedule 3.13a whole. True, unredacted and complete copies of all of the Company Material Contracts have been made available to Parent.
Appears in 2 contracts
Sources: Merger Agreement (Akari Therapeutics PLC), Merger Agreement (Peak Bio, Inc.)
Material Contracts. (a) For purposes Section 4.18 of this Agreementthe Disclosure Schedule sets forth a list of all Material Contracts (as hereinafter defined). The Company has heretofore made available to the Parent true, “Material Contract” shall mean the following correct and complete copies of all written or oral contracts and agreements (and all amendments, modifications and supplements thereto and all side letters to which the Company or any Subsidiary of its subsidiaries is a party affecting the obligations of any party thereunder) to which the Company or any of its subsidiaries is a party or by which any of their its properties or assets are bound:
bound that are material to the business, properties or assets of the Company and its subsidiaries taken as a whole, including, without limitation, to the extent any of the following are, individually or in the aggregate, material to the business, properties or assets of the Company and its subsidiaries taken as a whole, all: (i) employment, severance, product design or development, personal services, consulting, non-competition or indemnification contracts (including, without limitation, any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act), whether or not filed by the Company with the Commission;
(ii) any employment or consulting contract (in each case with respect to which the Company has continuing obligations as or any of the date hereof) with any current or former (x) executive officer its subsidiaries is a party involving employees of the Company, (y) member of the Board of Directors, or (z) Company employee providing for involving an annual base salary amount in excess of $200,000;
100,000; (ii) licensing, merchandising or distribution agreements; (iii) any contract providing for indemnification contracts granting a right of first refusal or any guaranty by the Company, in each case that is material to the Company, other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course of business;
first negotiation; (iv) any contract that purports to limit in any material respect the right of the Company (x) to engage in any line of business, partnership or (y) to compete with any Person or operate in any geographical location;
joint venture agreements; (v) any contract relating to agreements for the disposition or acquisition, directly sale or indirectly (by merger lease of material properties or otherwise)assets, by the Company of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, of the Company (by merger, purchase or sale of assets or stock or otherwise) entered into since January 1, 1997; (vi) loan or credit agreements, mortgages, indentures or other than accounts receivables agreements or instruments evidencing indebtedness for borrowed money by the Company or any of its subsidiaries or any such agreement pursuant to which indebtedness for borrowed money may be incurred; (vii) agreements that purport to limit, curtail or restrict the ability of the Company or any of its subsidiaries to compete in any geographic area or line of business; and payables;
(xviii) commitments and agreements to enter into any of the foregoing (collectively, together with any such contracts entered into in accordance with Section 6.1 hereof, the "Material Contracts"). Neither the Company nor any of its subsidiaries is a party to or bound by any severance or other agreement with any employee collective bargaining agreement or other contract with consultant pursuant to which such person would be entitled to receive any labor union;
(xi) any other contract under which additional compensation or an accelerated payment of compensation as a result of the Company is obligated to make payment or incur costs in excess consummation of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IPTransactions.
(b) (i) All Each of the Material Contracts are constitutes the valid and legally binding on obligation of the Company or its Subsidiariessubsidiaries, enforceable against it in accordance with its termsterms (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar Laws of general applicability relating to or affecting creditors' rights or by general equity principles), and are is in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither . There is no default under any Material Contract so listed either by the Company or any Subsidiary noror, to the knowledge Company's Knowledge, by any other party thereto, and no event has occurred that with the lapse of time or the Company, any third party is in violation giving of any provision of, notice or failed to perform any obligation required under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither both would constitute a default thereunder by the Company or any Subsidiary noror, to the knowledge of the Company's Knowledge, any third other party, is in breach, .
(c) No party to any such Material Contract has given notice to the Company of or has received written notice of material breach, of made a claim against the Company with respect to any Material Contract, except as disclosed in Schedule 3.13breach or default thereunder.
Appears in 2 contracts
Sources: Stock Purchase Agreement (QMS Inc), Stock Purchase Agreement (Minolta Investments Co)
Material Contracts. (a) For purposes Section 3.13(a) of this Agreement, “Material Contract” shall mean the Parent Disclosure Schedule sets forth a complete and correct list of each of the following Contracts (other than Parent Plans) to which the Company Parent or any Subsidiary of its Subsidiaries is a party or any (each of their assets are boundthe Contracts and other documents required to be listed in Section 3.13(a) of the Parent Disclosure Schedule, a “Parent Material Contract”) as of the Agreement Date:
(i) any “material contract” (as such term is defined Contracts with Parent’s top five marketing and advertising partners based on cost in Item 601(b)(10) of Regulation Sthe 12-K of month period prior to the Securities Act), whether or not filed by the Company with the CommissionAgreement Date;
(ii) any employment or consulting contract (in each case with respect All licenses pursuant to which any Person is authorized to use any Parent-Owned IP Rights, other than Parent-Owned IP Rights licensed to customers or marketing and advertising partners in the Company has continuing obligations as ordinary course of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000business;
(iii) any contract providing Contracts for indemnification the acquisition, sale or any guaranty lease of material properties or material assets (by the Companymerger, in each case that is material to the Company, purchase or sale of stock or assets or otherwise) other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into capital equipment in the ordinary course of business;
(iv) Loan or credit agreement, mortgage, indenture, note or other Contract or instrument evidencing indebtedness for borrowed money (contingent or otherwise) or for the deferred purchase price of property or services by Parent or any contract that purports of its Subsidiaries, or any Contract or instrument pursuant to limit which indebtedness for borrowed money (contingent or otherwise) or for the deferred purchase price of property or services may be incurred or is guaranteed by Parent or any of its Subsidiaries, or any guarantees by third parties for the benefit of Parent or any of its Subsidiaries, in each case having an outstanding principal amount in excess of $100,000;
(v) Mortgage, pledge, security agreement, deed of trust or other Contract granting a Lien on any material property or material assets of Parent or any of its Subsidiaries other than for capital equipment in the ordinary course of business;
(vi) Contracts containing a covenant expressly limiting in any material respect the right freedom of the Company (x) Parent or any of its Subsidiaries to engage in any line of business, business with any Person or (y) in any geographic area or to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the CompanyPerson;
(vii) any contract that obligates the Company Contracts to conduct business on an exclusive or preferential basis with any third which a Governmental Authority is a party;
(viii) any partnership, joint venture Contract that gives rise to any payment or similar contract that is material to benefit in excess of $100,000 as a result of the Companyperformance of this Agreement or any of the Transactions;
(ix) any mortgagesContracts for the leases or subleases of real property to or by Parent or a Subsidiary, indentures, guarantees, loans other than leases or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case subleases that do not involve aggregate payments in excess of $250,000, other than accounts receivables and payables100,000 over the 12-month period commencing on the Agreement Date;
(x) any employee collective bargaining settlement agreement or other contract with of any labor union;Legal Proceeding since the Parent Reference Date; and
(xi) any other contract under agreement (or group of related agreements) the performance of which requires aggregate payments to or from Parent or any of its Subsidiaries after the Company is obligated to make payment or incur costs Agreement Date in excess of $250,000 annually, other than agreements with marketing or advertising partners entered into in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above the ordinary course of business that is material to the Company; or
(xiii) any contract relating to material Company IPare terminable by Parent upon less than 30 days’ notice without penalty.
(b) (i) All Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, each of the Parent Material Contracts are valid is, as of the Agreement Date, valid, binding and binding on the Company or its Subsidiaries, in full force and effect and is enforceable against it in accordance with its terms, and are in full force and effectterms by Parent or the applicable Subsidiary, subject to laws of general application relating to bankruptcythe General Enforceability Exceptions. Neither Parent nor the applicable Subsidiary is in default in any material respect under any Parent Material Contract, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the Company or any Subsidiary nor, to the knowledge Knowledge of Parent, does any condition exist that, with notice or lapse of time or both, would constitute a default in any material respect thereunder by Parent or the applicable Subsidiary. As of the Company, any third party is in violation of any provision of, or failed to perform any obligation required under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the Company or any Subsidiary norAgreement Date, to the knowledge Knowledge of Parent, (i) no other party to any Parent Material Contract is in default, in any material respect, under any of the Companyprovisions, terms or conditions thereunder and (ii) no condition exists that with notice or lapse of time or both would constitute a default in any third partymaterial respect by any such other party thereunder. As of the Agreement Date, is in breachto the Knowledge of Parent, or neither Parent nor any of its Subsidiaries has received written notice of material breach, (i) any termination or cancellation of any Parent Material Contract or (ii) any past, present or future material breach or material default under any Parent Material Contract, except as disclosed in Schedule 3.13or granted to any third party any material rights, adverse or otherwise, that would constitute a material breach of any Parent Material Contract (it being understood and agreed that any breach or default that gives the other party a right to termination shall be considered a material breach or material default).
Appears in 2 contracts
Sources: Merger Agreement (Spark Networks SE), Agreement and Plan of Merger
Material Contracts. (a) For purposes Except as set forth in Section 3.19 of the Company Disclosure Schedule and except for Company Benefit Plans, as of the date of this Agreement, “Material Contract” shall mean the following to which neither the Company or nor any Subsidiary of its Subsidiaries is a party to or any of their assets are boundbound by:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities ActSEC), whether or not filed by the Company with the Commission;
(ii) any employment Contract between the Company or consulting contract any Subsidiary of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly owned Subsidiary of the Company) of the Company or any Subsidiary of the Company or any of their respective “associates” or “immediate family” members (as such terms are defined in each case with respect Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including (but not limited to) any Contract pursuant to which the Company has continuing obligations as or any Subsidiary of the date hereof) with any current Company has an obligation to indemnify such officer, director, Affiliate or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000family member;
(iii) any contract providing for indemnification Contract that imposes any restriction on the right or any guaranty by ability of the Company, any of its Subsidiaries or any Affiliate of them to compete with any other person in each case any line of business or geographic region, or solicit any customer (or that is material following the Effective Time will restrict the right or ability of Parent or its Subsidiaries to the Company, other than engage in any contract providing for indemnification line of customers business or other Persons pursuant to contracts entered into compete in the ordinary course of businessany geographic area);
(iv) any contract Contract that purports to limit in any material respect the right of obligates the Company or its Subsidiaries (xor following the Effective Time, Parent or its Subsidiaries) to engage in any line of business, or (y) to compete conduct business with any Person third party on a preferential or operate in any geographical locationexclusive basis or which contains a “most favored nation” or similar covenant;
(v) any contract acquisition or divestiture Contract or material licensing agreement that contains material indemnities or any “earnout” or other contingent payment obligations that are outstanding obligations of the Company or any of its Subsidiaries as of the date of this Agreement;
(vi) any Collective Bargaining Agreement or other works council agreement;
(vii) any agreement relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by Indebtedness of the Company or any of assets its Subsidiaries having an outstanding principal amount in excess of $10,000,000;
(viii) any Contract that grants any right of first refusal or right of first offer or similar right with respect to any assets, rights or properties of the Company or its Subsidiaries (A) for, or that would reasonably be expected to result in, total consideration of more than $10,000,000 or (B) with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company10,000,000;
(ix) any mortgages, indentures, guarantees, loans Contract that provides for the acquisition or credit agreements, security agreements disposition by the Company or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess any of $250,000, its Subsidiaries of any assets (other than accounts receivables acquisitions or dispositions of assets in the ordinary course of business) or a business (whether by merger, sale of stock or otherwise) that contain ongoing obligations that are material to the Company and payablesthe Company’s Subsidiaries, taken as a whole;
(x) any employee collective bargaining joint venture, partnership or limited liability company agreement or other contract with similar Contract relating to the formation, creation, operation, management or control of any labor unionjoint venture, partnership or limited liability company, other than any such Contract solely between the Company and its Subsidiaries or among the Company’s Subsidiaries;
(xi) any other contract under which Contract expressly limiting or restricting the ability of the Company is obligated or any of its Subsidiaries (A) to make payment distributions or incur costs declare or pay dividends in excess respect of $250,000 in their capital stock, partnership interests, membership interests or other equity interests, as the case may be, (B) to make loans to the Company or any year and which is not otherwise described in clauses of its Subsidiaries, or (i)–(xC) aboveto grant liens on the property of the Company or any of its Subsidiaries;
(xii) any contract which Contract that obligates the Company or any of its Subsidiaries to make any loans, advances or capital contributions to, or investments in, any person, except for (A) loans or advances for indemnification, attorneys’ fees, or travel and other business expenses in the ordinary course of business, (B) extended payment terms for customers in the ordinary course of business, (C) prepayment of Taxes for repatriated employees of the Company and its Subsidiaries or (D) loans, advances or capital contributions to, or investments in, any Person that is not otherwise described an Affiliate or employee of the Company not in clauses (i)-(xi) above that is material to the Company; orexcess of $25,000,000 individually;
(xiii) any settlement agreement entered into since July 1, 2013 (A) with a Governmental Entity, (B) that requires the Company and its Subsidiaries to pay more than $25,000,000 after the date of this Agreement or (C) imposes any restrictions on the business of the Company or its Subsidiaries;
(xiv) any Contract with a Top Customer, Top Distributor or Top Supplier (excluding purchase orders issued in the ordinary course of business);
(xv) any Contract that involved the payment of more than $10,000,000 by the Company and its Subsidiaries in fiscal year 2016 or that is expected to result in the payment of such amount by the Company and its Subsidiaries in fiscal year 2017 (excluding Contracts (A) with customers, distributors, suppliers or Representatives or (B) that are purchase orders issued in the ordinary course of business);
(xvi) any Contract that involved the receipt of more than $10,000,000 by the Company and its Subsidiaries in fiscal year 2016 or that is expected to result in the receipt of such amount by the Company and its Subsidiaries in fiscal year 2017 (excluding Contracts (A) with customers, distributors, suppliers or Representatives or (B) that are purchase orders issued in the ordinary course of business);
(xvii) any Contract relating to the supply of any item used by the Company or a Subsidiary of the Company that is a sole source of supply of any raw material, component or service and under which the Company paid more than $5,000,000 to the relevant supplier in fiscal year 2016 or that is expected to result in the payment of such amount by the Company and its Subsidiaries in fiscal year 2017 (excluding purchase orders issued in the ordinary course of business);
(xviii) any material Government Contract that has not been closed out; or
(xix) any contract relating to the creation of any Lien (other than Permitted Liens) with respect to any material asset of the Company IPor any Subsidiary of the Company. All contracts of the types referred to in clauses (i) through (xix) above (whether or not set forth on Section 3.19 of the Company Disclosure Schedule), are referred to herein as “Company Material Contracts.” The Company has made available to Parent prior to the date of this Agreement a complete and correct copy of each Company Material Contract as in effect on the date of this Agreement.
(b) (i) All Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contracts are valid and binding on the Company or its Subsidiaries, enforceable against it in accordance with its terms, and are in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the Company or any Subsidiary norContract and, to the knowledge of the Company, no other party to any third party Company Material Contract is in violation breach of or default under the terms of any provision of, Company Material Contract and no event has occurred or failed to perform any obligation required under not occurred through the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the Company Company’s or any Subsidiary norof its Subsidiaries’ action or inaction or, to the knowledge of the Company, through the action or inaction of any third party, that with notice or the lapse of time or both would constitute a breach of or default under the terms of any Company Material Contract, in each case except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of the Company or the Subsidiary of the Company that is party thereto and, to the knowledge of the Company, of each other party thereto (except in each case as enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, affecting creditors’ rights generally, and that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought), and is in breachfull force and effect, in each case except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract and as of the date of this Agreement, neither the Company nor any of its Subsidiaries has received any written notice of material breach, the intention of any other party to any Company Material ContractContract to terminate for default, convenience or otherwise any Company Material Contract prior to its stated expiration date, nor to the knowledge of the Company, is any such party threatening to do so, in each case except as disclosed would not reasonably be expected to have, individually or in Schedule 3.13the aggregate, a Company Material Adverse Effect.
(c) As of the date of this Agreement, no Top Supplier, Top Customer or Top Distributor has canceled, terminated or substantially curtailed its relationship with the Company or any Subsidiary of the Company, given notice to the Company or any Subsidiary of the Company of any intention to cancel, terminate or substantially curtail its relationship with the Company or any Subsidiary of the Company, or, to the knowledge of the Company, threatened to do any of the foregoing.
Appears in 2 contracts
Sources: Merger Agreement (Linear Technology Corp /Ca/), Merger Agreement (Analog Devices Inc)
Material Contracts. (a) For purposes All of this Agreement, “Material Contract” shall mean the following to which the Company Contracts that are required to be described in the Company SEC Reports or any Subsidiary is a party to be filed as exhibits thereto are described in the Company SEC Reports or filed as exhibits thereto. Neither the Company nor any of their assets are boundits Subsidiaries nor, to SPX's knowledge, any other party is in breach of or in default under any Company Contract, except for such breaches and defaults which would not, individually or in the aggregate, have a Material Adverse Effect on the Company. Section 3.13 of the Company Disclosure Letter sets forth:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of Company Contract containing any provision or covenant limiting the Securities Act), whether or not filed by the Company with the Commission;
(ii) any employment or consulting contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000;
(iii) any contract providing for indemnification or any guaranty by the Company, in each case that is material to the Company, other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course of business;
(iv) any contract that purports to limit in any material respect the right ability of the Company or any of its Subsidiaries to (xa) sell any product or service of or to any other person, (b) engage in any line of business, or (yc) to compete with or obtain products or services from any Person person or operate in limiting the ability of any geographical location;
(v) any contract relating person to provide products or services to the disposition Company or acquisitionany of its Subsidiaries which limitation would, directly individually or indirectly (by merger or otherwise)in the aggregate, by the Company of assets with have a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to Material Adverse Effect on the Company;
(viiii) any contract that obligates Company Contract, or group of Company Contracts with a Person (or group of affiliated Persons), the Company to conduct business termination or breach of which would have a Material Adverse Effect on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ixiii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, (A) all Company Contracts with the top two providers (as measured by fees paid under such Contracts in each case relating the last fiscal year) pursuant to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IP.
(b) (i) All of the Material Contracts are valid and binding on the Company or its Subsidiaries, enforceable against it in accordance with its terms, and are in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policypurchases ASICS, (iiB) neither all Company Contracts with the top five distributors of end-user products (as measured by revenues received under such Contracts in the last fiscal year) pursuant -15- to which the Company or any Subsidiary norof its Subsidiaries distributes its end-user products, to the knowledge of the Company, any third party is in violation of any provision of, or failed to perform any obligation required under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iiiC) neither all Company Contracts with the top five third-party manufacturers (as measured by fees paid under such Contracts in the last fiscal year) pursuant to which the products of the Company or any Subsidiary nor, to of its Subsidiaries (or subassemblies thereof) are manufactured; and
(iv) all written Company Contracts with SPX or any of its Subsidiaries (other than the knowledge Company or any of the Company, any third party, is in breach, or has received written notice of material breach, of any Material Contract, except as disclosed in Schedule 3.13its Subsidiaries).
Appears in 2 contracts
Sources: Merger Agreement (Computer Network Technology Corp), Merger Agreement (Computer Network Technology Corp)
Material Contracts. (a) For purposes As of the date of this Agreement, “Material Contract” shall mean and except as disclosed by Section 3.09(a) of the following to which the Company WBKC Disclosure Schedule, neither WBKC nor any of its Subsidiaries, nor any of their respective assets, businesses, or any Subsidiary operations, is a party to, or any of their assets are bound:is bound or affected by, or receives benefits under the following material contracts (collectively, the “Material Contracts”):
(i) any “material contract” contract relating to the borrowing of money in excess of $100,000 by WBKC or any of its Subsidiaries or the guarantee by WBKC or any of its Subsidiaries of any such obligation (other than FHLB of Indianapolis advances, contracts pertaining to fully-secured securities repurchase agreements, trade payables, bankers’ acceptances, and contracts relating to borrowings or guarantees made in the ordinary course of business);
(ii) any contract containing covenants that limit the ability of WBKC or any of its Subsidiaries to compete in any line of business or with any Person, or to hire or engage the services of any Person, or that involve any restriction of the geographic area in which, or method by which, WBKC or any of its Subsidiaries may carry on its business (other than as may be required by Law (as such term is defined in Item Section 3.05(a)) or any Governmental Authority (as defined in Section 5.13)), or any contract that requires it or any of its Subsidiaries to deal exclusively or on a “sole source” basis with another party to such contract with respect to the subject matter of such contract;
(iii) any contract for, with respect to, or that contemplates, a possible merger, consolidation, reorganization, recapitalization, joint venture, or other business combination, or asset sale or sale of equity securities not in the ordinary course of business consistent with past practice, with respect to WBKC or any of its Subsidiaries;
(iv) any lease of real or personal property providing for total aggregate lease payments by or to WBKC or its Subsidiaries during the remaining term of the agreement in excess of $50,000 or having a remaining term in excess of two years, other than financing leases entered into in the ordinary course of business in which WBKC or any of its Subsidiaries is the lessor;
(v) any contract that involves total aggregate expenditures or receipts by WBKC or any of its Subsidiaries in excess of $100,000 during the remaining term of the agreement or having a remaining term in excess of two years, excluding agreements relating to loans and deposits with Wolverine Bank customers;
(vi) any material licensing agreement or other contract with respect to patents, trademarks, copyrights, or other intellectual property, including software agreements (other than off-the-shelf and similar software generally available to the public) and including agreements with current or former employees, consultants, or contractors regarding the appropriation or the nondisclosure of any of its intellectual property; or
(vii) any other document, instrument or agreement that is required to be filed as an exhibit to any WBKC SEC Report (as defined in Section 3.36) (pursuant to Items 601(b)(4) or 601(b)(10) of Regulation S-K of under the Securities Act)▇▇▇▇ ▇▇▇) that has not been filed as an exhibit to, whether or not incorporated by reference in, WBKC’s SEC Reports filed by the Company with the Commission;
(ii) any employment or consulting contract (in each case with respect prior to which the Company has continuing obligations as of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000;
(iii) any contract providing for indemnification or any guaranty by the Company, in each case that is material to the Company, other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course of business;
(iv) any contract that purports to limit in any material respect the right of the Company (x) to engage in any line of business, or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IPthis Agreement.
(b) With respect to each of WBKC’s Material Contracts: (i) All of the each Material Contracts are valid and binding on the Company or its Subsidiaries, enforceable against it in accordance with its terms, and are Contract is in full force and effect, effect (subject to laws of general application relating to bankruptcyiv), insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, below); (ii) neither the Company or WBKC nor any Subsidiary nor, to the knowledge of the Company, any third party its Subsidiaries is in violation of any provision ofmaterial default thereunder, as such term or failed to perform any obligation required under the provisions of, any concept may be defined in each Material Contract, except as disclosed in Schedule 3.13 and ; (iii) neither the Company WBKC nor any of its Subsidiaries has repudiated or waived any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or has received written notice of material breach, provision of any Material Contract; (iv) to WBKC’s knowledge, except no other party to any Material Contract is in default or otherwise not in compliance with any material term or condition of any Material Contract; and (v) a true and complete copy of each Material Contract has been previously delivered to Horizon.
(c) Except as disclosed in Schedule 3.13Section 3.09(c) of the WBKC Disclosure Schedule, neither WBKC 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 WBKC’s own account or for the account of one or more of its Subsidiaries or their respective customers.
Appears in 2 contracts
Sources: Merger Agreement (Wolverine Bancorp, Inc.), Merger Agreement (Horizon Bancorp /In/)
Material Contracts. (a) For purposes Schedule 5.13(a) sets forth all of this Agreement, “Material Contract” shall mean the following Contracts to which the Company or any Subsidiary of the Subsidiaries is a party or any of their assets are bound:by which it is bound (collectively, the “Material Contracts”):
(i) Contracts with any “material contract” Stockholders or any current officer or director of the Company or any of the Subsidiaries or any Affiliate (as such term is defined in Item 601(b)(10other than a Subsidiary) of Regulation S-K the Company or any of the Securities Act), whether or not filed by the Company with the CommissionStockholders;
(ii) Contracts with any employment labor union or consulting contract (in each case with respect to which association representing any employee of the Company has continuing obligations as or any of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000Subsidiaries;
(iii) Contracts for the sale of any contract providing for indemnification of the assets of the Company or any guaranty by of the Company, in each case that is material to the Company, Subsidiaries other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course Ordinary Course of businessBusiness;
(iv) Contracts relating to the acquisition by the Company or any contract that purports to limit in any material respect the right of the Company (x) to engage in Subsidiaries of any line operating business or the capital stock of business, or (y) to compete with any Person or operate in any geographical locationother Person;
(v) any contract Contracts relating to the disposition incurrence of Indebtedness, or acquisition, directly or indirectly (by merger or otherwise), by the Company making of assets with a fair market value in excess of $250,000any loans;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements Contracts for a given product joint ventures, strategic alliances or service from a given third party, which product or service is material to the Companypartnerships;
(vii) any contract that obligates Contracts containing covenants of the Company or any of the Subsidiaries not to conduct compete in any line of business on an exclusive or preferential basis with any third partyperson in any geographical area or covenants of any other person not to compete with the Company or any of the Subsidiaries in any line of business or in any geographical area;
(viii) Contracts under which the Company or any partnership, joint venture of the Subsidiaries has made advances or similar contract that is material loans to the Companyany other Person;
(ix) any mortgagesContracts providing for severance, indenturesretention, guarantees, loans or credit agreements, security agreements change in control or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payablessimilar payments;
(x) Contracts for the employment of any employee collective bargaining agreement individual on a full-time, part-time or consulting or other contract with any labor union;basis; and
(xi) any other contract under which outstanding agreements of guaranty, surety or indemnification, direct or indirect, by the Company is obligated to make payment or incur costs in excess any of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IPSubsidiaries.
(b) (i) All of the Material Contracts are valid and binding on Neither the Company nor any Subsidiary has received any written notice of any default or its Subsidiariesevent that with notice or lapse of time, enforceable against it in accordance with its termsor both, and are in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither would constitute a default by the Company or any Subsidiary nor, to and the knowledge of the Company, any third party is in violation of any provision of, or failed to perform any obligation required Subsidiaries under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the Company for such defaults that are no longer continuing or any Subsidiary nor, would not reasonably be expected to the knowledge of the Company, any third party, is in breach, or has received written notice of material breach, of any have a Material Contract, except as disclosed in Schedule 3.13Adverse Effect.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Sixx Holdings Inc), Stock Purchase Agreement (Bailey Lee Ann)
Material Contracts. (a) For purposes As of this Agreementthe date hereof, “Material Contract” shall mean the following there are no material Contracts to which the Company or any Subsidiary 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 Company 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 the Company or any of their assets are bound:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K its Subsidiaries, or which, following the consummation of the Securities Act)Merger, whether would restrict the ability of Parent or not filed by any of its controlled Affiliates, including the Surviving Company and its Subsidiaries, to compete or transact in any business or with any Person or in any geographic area or grants a right of exclusivity to any Person, (iii) pursuant to which any indebtedness of the Company with the Commission;
(ii) or any employment of its Subsidiaries is outstanding or consulting contract (in each case with respect may be incurred or pursuant to which the Company has continuing obligations as of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000;
(iii) any contract providing for indemnification or any guaranty by the Company, in each case that is material to the Company, of its Subsidiaries guarantees any indebtedness of any other Person (other than the Company or any contract providing of its Subsidiaries) (except for indemnification of customers or other Persons pursuant to contracts entered into trade payables arising in the ordinary course of business;
), (iv) any contract that purports with respect to limit in any material respect the right of the Company (x) to engage in any line of business, or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or other similar contract that is material arrangement with any other Person (other than the Company or any of its Subsidiaries), relate to the Company;
formation, creation, operation, management or control of any such partnership or joint venture; (ixv) any mortgages, indentures, guarantees, loans that involves or credit agreements, security agreements could reasonably be expected to involve aggregate payments by or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case the Company and/or its Subsidiaries in excess of $250,0002,000,000 in any twelve-month period, other than accounts receivables Contracts that can be terminated by the Company or any of its Subsidiaries on less than 90 days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty; (vi) that have been entered into since January 1, 2012 or otherwise provide for material ongoing obligations of the Company or any of its Subsidiaries and payables;
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 (xexcluding, for the avoidance of doubt, acquisitions or dispositions of Investment Assets, supplies, products, office equipment, furnishings, fixtures, properties or other tangible assets in the ordinary course of business, or of supplies, products, office equipment, furnishings, fixtures, properties or other tangible assets that are obsolete, warn out, surplus or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries), (vii) pursuant to which (A) the Company or any of its Subsidiaries is granted or obtains any right to use any material Intellectual Property owned by any third party (other than standard form contracts granting rights to use commercially available software) or (B) any employee collective bargaining agreement third party is granted or other contract with obtains the right to use or register any labor union;
(xi) any other contract under which material Intellectual Property owned by the Company or any of its Subsidiaries, including, in each case, any license agreements, coexistence agreements, or covenants not to ▇▇▇, (viii) that prohibits or restricts the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibits the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibits or restricts the issuance of any guarantee by the Company or any Subsidiary of the Company, or (ix) that is obligated a Contract with an investment manager or Investment advisor providing services to make payment the Company or incur costs in excess any of $250,000 in any year and which is not its Subsidiaries or otherwise relating to the management of the Investment Assets (each such Contract described in clauses (i)–(x) above;
(xii) i)-(ix), other than any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IPReinsurance Contract, Real Property Lease or Benefit Plan, a “Material Contract”).
(b) (i) All of the Each Material Contracts are Contract is a legal, valid and binding on agreement of the Company or and its SubsidiariesSubsidiaries to the extent such Person is a party thereto, enforceable against it as applicable, and to the Knowledge of the Company, each other party thereto is in accordance compliance in all material respects with its terms, terms and are is in full force and effect, subject except where the failure to laws of general application relating be valid, binding or in full force and effect would not, individually or in the aggregate, reasonably be expected to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policyhave a Company Material Adverse Effect, (ii) neither the Company or any Subsidiary norand each of its Subsidiaries, and, to the knowledge Knowledge of the Company, any third each other party is in violation of any provision ofthereto, or failed has performed all obligations required to perform any obligation required be performed by it under the provisions of, any such Material Contract, except as disclosed where such noncompliance would not, individually or in Schedule 3.13 and the aggregate, reasonably be expected to have a Company Material Adverse Effect, (iii) neither the Company 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 the Company or any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or has received written notice of material breach, of its Subsidiaries under any Material Contract, except where such default would not, individually or in the aggregate, reasonably be expected to have a Company 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 disclosed would not, individually or in Schedule 3.13the aggregate, reasonably be expected to have a Company Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Renaissancere Holdings LTD), Merger Agreement (Platinum Underwriters Holdings LTD)
Material Contracts. (a) For purposes Section 2.14(a) of the Disclosure Schedule identifies, as of the date of this AgreementAgreement (provided that the disclosures required by Section 2.14(a)(xv) shall be provided and deemed incorporated into the Disclosure Schedule not more than five (5) Business Days after the date hereof), “Material Contract” shall mean in each subpart that corresponds to the following subsection listed below, any Contract in effect as of the date hereof, (x) to which the Company or any Subsidiary is a party or (y) by which the Company or any Subsidiary or any of their assets are bound:is bound or under which the Company or any Subsidiary has any obligation (the Contracts described below, whether or not set forth in Section 2.14(a) of the Disclosure Schedule, being referred to herein as the “Material Contracts”):
(i) any “material contract” (as such term that is defined in Item 601(b)(10) of Regulation S-K of the Securities Act), whether with a Significant Customer or not filed by the Company with the Commissiona Significant Supplier;
(ii) any employment or consulting contract (in each case with respect pursuant to which the Company or any Subsidiary (A) has continuing obligations been appointed a partner, reseller, dealer, or distributor or OEM or (B) has appointed another party as dealer, distributor, sales representative, OEM, value added reseller, remarketer or reseller of any of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000Products;
(iii) any contract providing for indemnification pursuant to which the Company or any guaranty Subsidiary is bound to or has committed to provide any Company Product to any third party on a most favored pricing basis;
(iv) pursuant to which the Company or any Subsidiary is bound to, or has committed to provide or license (A) any patents that are Company IP to any third party, or (B) any Intellectual Property Rights to any third party on an exclusive basis, or (C) any commitment to acquire or license any product or service on an exclusive basis from a third party;
(v) imposing any restriction by its terms on the Companyright or ability of the Company or any Subsidiary (or that would purport by its terms to limit the freedom of Parent or any of its Affiliates): (A) to compete with any other Person or to engage in any line of business, market or geographic area, or to sell, license, manufacture or otherwise distribute any of its technology or products, or from providing services, to customers or potential customers or any class of customers, in each case that is material any geographic area, during any period of time, or in any segment of the market; or (B) to solicit the Companyemployment of, or hire, any potential employees, consultants or independent contractors (other than any contract providing for indemnification of customers or other Persons pursuant to contracts non-disclosure agreements entered into in the ordinary course of business); notwithstanding the foregoing in this sub-section (v), restrictions relating to the license grants of Intellectual Property Rights from third Persons to the Company or any Subsidiary (or restrictions on the use of the software or Intellectual Property Rights embodied in such licenses) shall not be considered Material Contracts even if they otherwise meet the requirements of this sub-section (v);
(ivvi) that grants (A) any contract that purports right of first refusal, right of first offer or similar right with respect to limit in any material respect the right assets, rights or properties of the Company or any of the Subsidiaries, or (B) any royalties to any Person;
(vii) set forth or required to be set forth in Sections 2.13(a)(ii) of the Disclosure Schedule;
(viii) set forth or required to be set forth in Section 2.15(a)(1) of the Disclosure Schedule;
(ix) that is a Lease Agreement;
(x) relating to engage capital expenditures and involving future payments in any line excess of business, $100,000 individually or (y) to compete with any Person or operate $500,000 in any geographical locationthe aggregate;
(vxi) any contract relating to the settlement of any Action for an amount in excess of $50,000;
(xii) relating to (A) the disposition or acquisition, directly or indirectly (by merger or otherwise), acquisition by the Company of material assets in any other Person or (B) the acquisition by the Company of any securities of any other Person;
(xiii) Contract of any guaranty, pledge, performance or completion bond, indemnity or surety arrangement, but excluding indemnities granted in the ordinary course of business in connection with the sale of Company Products, standard customer, supplier and distributor Contracts, and indemnification agreements with officers or directors of the Company or its Subsidiary that have been made available to Parent;
(xiv) creating or governing any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(xv) any prime (direct) contract executed or submitted to or on behalf of any Governmental Entity;
(xvi) any Contract not required to be listed above pursuant to which any obligations continue to be outstanding and that contemplates or involves: (A) the payment or delivery of cash or other consideration in an amount or having a fair market value in excess of $250,000;
500,000 per year in the aggregate; or (viB) any contract that contains any provision that requires the purchase performance of all of the Company’s requirements for services having a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case value in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which 500,000 per year in the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IPaggregate.
(b) (i) All The Company has Made Available true, correct and complete copies of all written Material Contracts in effect as of the date hereof, including all amendments thereto. Section 2.14(b) of the Disclosure Schedule provides an accurate description of the terms of each Material Contracts are Contract that is not in written form. Each Material Contract is valid and binding on in full force and effect and is enforceable against the Company and by the Company or its Subsidiaries, enforceable against it the Subsidiaries in accordance with its terms, and are in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the Enforceability Limitations. Neither the Company or nor any Subsidiary nor, to the knowledge of the Company, has violated or breached in any third party is in violation of any provision ofmaterial respect, or failed to perform committed any obligation required under the provisions ofmaterial default under, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the Company or any Subsidiary norand, to the knowledge Knowledge of the Company, no other Person has violated or breached in any third party, is in breachmaterial respect, or committed any material default under, any such Material Contract. To the Knowledge of the Company, no event has received written occurred, and no circumstance or condition exists, that (with or without notice or lapse of material breachtime) will, or would reasonably be expected to: (i) result in a violation or breach of any of the provisions of any Material Contract; (ii) give any Person the right to declare a default or exercise any remedy under any Material Contract; (iii) give any Person the right to accelerate the maturity or performance of any Material Contract; or (iv) give any Person the right to cancel, except as disclosed in Schedule 3.13terminate or modify any Material Contract. Neither the Company nor any Subsidiary has received any written notice regarding any actual or possible violation or breach of, or default under, any Material Contract. Neither the Company nor any Subsidiary has waived any of its material rights under any Material Contract. Neither the Company nor any Subsidiary has received any written notice from a Person threatening to terminate or refuse to perform its obligations under any Material Contract (regardless of whether such Person has the right to do so under such Contract).
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (GOOD TECHNOLOGY Corp), Agreement and Plan of Reorganization (GOOD TECHNOLOGY Corp)
Material Contracts. (a) For purposes Except as otherwise disclosed in Section 2.12 of the Parent Disclosure Letter, neither the Company nor any Company Subsidiary is a party to or bound by any contract, arrangement, commitment or understanding (whether written or oral):
(i) which is an employment agreement between the Company or a Company Subsidiary, on the one hand, and any of its officers, directors or employees, on the other hand, excluding any unwritten agreement that provides de minimis working condition benefits and is terminable unilaterally by the Company or the Company Subsidiaries without liability;
(ii) which, upon the consummation of this Agreement and the transactions contemplated by this Agreement, “Material Contract” shall mean will (either alone or upon the following occurrence of any additional acts or events, including the passage of time) result in any material payment or benefit (whether of severance pay or otherwise) becoming due, or the acceleration or vesting of any right to which any material payment or benefits, from the Company or any Subsidiary of the Company Subsidiaries to any officer, director, consultant, agent or employee of any of the foregoing;
(iii) which is a party or any of their assets are bound:
(i) any “material contract” contract (as such term is defined in Item 601(b)(10601(b)(10)(i) or 601(b)(10)(ii) of Regulation S-K of the Securities Act), whether ) to be performed on or not filed by after the Company with the Commissiondate of this Agreement;
(iiiv) any employment or consulting contract (in each case with respect to which except for intercompany transactions among the Company has continuing obligations as of and the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000;
(iii) any contract providing for indemnification or any guaranty by the Company, in each case that is material to the Company, other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into Subsidiaries in the ordinary course of business;
(iv) any contract that purports to limit in any material respect the right of the Company (x) to engage in any line of businessbusiness consistent with past practice, or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition borrowing of money (including any guarantee thereof) or acquisitionthat is a mortgage, directly or indirectly (by merger or otherwise)security agreement, by the Company of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture capital lease or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,00075,000 or that creates a Lien on any asset of the Company or any Company Subsidiary;
(v) relating to the sale of any of the assets or properties of the Company or any of the Company Subsidiaries, except inventory sold or to be sold in the ordinary course of the Company’s or the Company Subsidiaries’ business;
(vi) relating to the acquisition by the Company or any of the Company Subsidiaries of any assets, operating business or the capital stock of any other than accounts receivables Person, except inventory purchased in the ordinary course of the Company’s or the Company Subsidiaries’ business;
(vii) which limits the ability of the Company or any Company Subsidiary to (x) compete in or conduct any line of business or compete with any Person or in any geographic area or distribution or sales channel, (y) sell, supply or distribute any service or product, or (z) offer or purchase the assets or equity securities of another Person, in each case, during any period of time;
(viii) which is a joint venture agreement, joint operating agreement, partnership agreement or other similar contract or agreement involving a sharing of profits and payablesexpenses with one or more other Persons;
(ix) which is a shareholder rights agreement or which otherwise provides for the issuance, registration or voting of any securities of the Company or any of the Company Subsidiaries; or
(x) which requires a consent to a change of control of the Company or any employee collective bargaining agreement of the Company Subsidiaries or other contract with any labor union;to an assignment of the contract, arrangement, commitment or understanding by the Company to another Person, as the case may be; or
(xi) any other contract under than those agreements listed in clauses (i) to (x) above, which provides for the annual aggregate payment or receipt by the Company is obligated to make payment or incur costs any of the Company Subsidiaries of amounts in excess of $250,000 in any year 75,000 individually within the next 12 months and which is not otherwise terminable without premium or penalty on less than 30 days’ notice. Each contract, arrangement, commitment or understanding of the type described in clauses (i)–(xthis Section 2.12(a) above;
(xii) any contract which is not otherwise described referred to herein as a “Company Material Contract” and is listed in clauses (i)-(xi) above that is material Section 2.12 of the Parent Disclosure Letters. The Company has made available to the Company; or
(xiii) any contract relating to material PESI true, complete and correct copies of each Company IPMaterial Contract.
(b) Each Company Material Contract is valid and binding and in full force and effect and the Company and each of the Company Subsidiaries has performed all obligations required to be performed by them to date under each Company Material Contract, the failure of which, individually or in the aggregate, have a Material Adverse Effect. Except as set forth on Section 2.12 of the Parent Disclosure Letter, and except for such matters as have not had, and could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect (i) All none of the Material Contracts are valid and binding on Parent, the Company or its Subsidiariesany of the Company Subsidiaries has received written notice of, and to Parent’s or the Company’s Knowledge, there does not exist, any breach of or violation or default under any of the terms, conditions or provisions of any Company Material Contract and (ii) neither Parent, the Company nor any of the Company Subsidiaries has received written notice of, and to Parent’s or the Company’s Knowledge there does not exist, the desire of the other party or parties to any such Company Material Contract to exercise any rights such party has to cancel, terminate or repudiate such Company Material Contract or exercise remedies thereunder. Each Company Material Contract is enforceable against it by the Company or a Company Subsidiary in accordance with its terms, and are in full force and effect, except as such enforcement may be subject to laws of general application relating to or limited by (x) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or other Laws, now or hereafter in effect, affecting creditors’ rights generally and rules (y) the effect of general principles of equity (regardless of whether enforceability is considered in a proceeding at law governing specific performanceor in equity).
(c) Except for the Company Credit Agreement and except as disclosed in Section 2.12 of the Parent Disclosure Letter, injunctive relief no agreement relating to any indebtedness for borrowed money of the Company or any of the Company Subsidiaries contains any restrictions (other equitable remedies, and to limitations than customary notice provisions) upon (i) the prepayment of public policyany indebtedness of the Company or any of the Company Subsidiaries, (ii) neither the incurrence by the Company or any Subsidiary nor, to the knowledge of the Company, any third party is in violation Company Subsidiaries of any provision ofindebtedness for borrowed money, or failed to perform any obligation required under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the ability of the Company or any Subsidiary nor, to the knowledge of the CompanyCompany Subsidiaries to grant any Lien on the properties or assets of the Company or any of the Company Subsidiaries. Under the terms of the Company Credit Agreement, any third partythe Company is permitted to prepay, is in breach, or has received upon 30 days prior written notice and without any form of material breachprepayment penalty, all indebtedness outstanding thereunder and obtain a release of any Material Contract, except as disclosed in Schedule 3.13all Liens on the assets of the Company and the Company Subsidiaries which secure such indebtedness.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Perma Fix Environmental Services Inc), Stock Purchase Agreement (Homeland Security Capital CORP)
Material Contracts. (a) For purposes As of the date of this Agreement, “Material Contract” shall mean the following to which the Company or any Subsidiary is and its Subsidiaries are not a party to or bound by any Contract (excluding the Benefit Plans listed on Section 5.9(a) of their assets are bound:the Company Disclosure Schedule):
(i) any “that would be required to be filed by the Company as a material contract” (as such term is defined in contract pursuant to Item 601(b)(10) of Regulation S-K of the Securities Act), whether or not filed by the Company with the CommissionSEC;
(ii) that is or creates a Partnership with any employment or consulting contract (in each case with respect other Person that is material to which the Company has continuing obligations and its Subsidiaries, taken as of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directorsa whole, or (z) Company employee providing for an annual base salary in excess that relates to the formation, operation, management or control of $200,000any such Partnership;
(iii) any contract that (A) is an indenture, credit agreement, loan agreement, security agreement, guarantee of, note, mortgage or other agreement providing for indemnification indebtedness (including obligations under any capitalized leases) in excess of $500,000 (other than agreements between the Company and any wholly owned Subsidiary or between wholly owned Subsidiaries) or pursuant to which the Company or any guaranty by of its Subsidiaries guarantees any such indebtedness of any other Person (other than the Company or another wholly owned Subsidiary), (B) materially restricts the Company’s ability to incur indebtedness or guarantee the indebtedness of others, in each case (C) grants a Lien (other than a Permitted Lien) or restricts the granting of Liens on any property or asset of the Company or its Subsidiaries that is material to the CompanyCompany and its Subsidiaries, taken as a whole, or (D) is an interest rate derivative, currency derivative or other hedging contract other than any contract providing for indemnification of customers or other Persons pursuant to contracts foreign currency cash flow ▇▇▇▇▇▇ entered into in the ordinary course of businessbusiness and classified as cash flow ▇▇▇▇▇▇ for accounting purposes;
(iv) that is a Contract (other than this Agreement) for the acquisition of any corporation, partnership or limited liability company or business, or sale of any of its Subsidiaries or businesses, in each case, after the date hereof, in each case with a fair market value or purchase price (including assumption of debt) in excess of $500,000 (other than (x) in the ordinary course of business or (y) intercompany agreements);
(v) that is a Contract providing for the outsourcing, contract manufacturing, testing, assembly or fabrication, as applicable, of any products, technology or services of the Company or any of its Subsidiaries under which the Company and its Subsidiaries have made or received payments in excess of $750,000 in the fiscal year ended March 29, 2015, or April 3, 2016, or that purports would otherwise reasonably be expected to limit be material to the Company and its Subsidiaries, taken as a whole;
(vi) that is a dealer, distributor, OEM (original equipment manufacturer), VAR (value added reseller), sales representative or similar Contract under which any third party is authorized to sell, sublicense, lease, distribute, market or take orders for the Company Products (A) with a third party that was one of the Company’s top twenty (20) customers by revenue in the fiscal year ended March 29, 2015, or April 3, 2016 or (B) under which the Company and its Subsidiaries made or received payments in excess of $750,000 in the fiscal year ended March 29, 2015, or April 3, 2016;
(vii) with respect to the acquisition or disposition of any corporation, partnership, limited liability company or business (whether by merger, amalgamation, consolidation or other business combination, sale of assets, sale of capital stock, tender offer, exchange offer, or similar transaction) pursuant to which the Company or any of its Subsidiaries has (A) material continuing indemnification obligations (and was entered into after March 1, 2005), or (B) any “earn-out” or similar contingent payment obligations in excess of $500,000 (other than any Contract that provides solely for the acquisition of inventory, raw materials or equipment in the ordinary course);
(viii) that contains a right of first refusal, first offer, or first negotiation, or a call or put right, with respect to any asset that would reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole;
(ix) that prohibits or restricts the payment of dividends or distributions in respect of the Company’s shares or capital stock;
(x) that is a purchase or sale agreement with any Significant Customer or Significant Supplier under which the Company and its Subsidiaries have made or received payments in excess of $500,000 in the fiscal year ended March 29, 2015, or April 3, 2016;
(xi) under which (A) any person (other than the Company or any of its Subsidiaries) is guaranteeing any liabilities or obligations of the Company or any of its Subsidiaries, or (B) the Company or any of its Subsidiaries has “take-or-pay” obligations;
(xii) that is between the Company or any of its Subsidiaries, on the one hand, and any of the Company’s or its Subsidiaries’ respective directors or officers or stockholders who own five percent (5%) or more of the Company Common Stock;
(xiii) providing for the creation or imposition of any Lien, other than a Permitted Lien, with respect to any assets (including Intellectual Property or other intangible assets) that would reasonably be expected to be material to the conduct of the business of the Company and its Subsidiaries as currently conducted, taken as a whole;
(xiv) that is a settlement, conciliation or similar agreement (x) with any Governmental Entity which (A) materially restricts or imposes material obligations upon the Company or its Subsidiaries, or (B) disrupts the business of the Company and its Subsidiaries as currently conducted in any material respect respect, or (y) which would require the Company or any of its Subsidiaries to make aggregate payments of more than $250,000 after the date of this Agreement; or
(xv) with any Governmental Entity, or for the purpose of fulfilling a Contract or order from any Governmental Entity as the ultimate customer, that would reasonably be expected to be material to the conduct of the business of the Company and its Subsidiaries as currently conducted, taken as a whole. Each such Contract described in clauses (i)-(xiv) or Section 5.8(c), together with each Material Company License-In Agreement and Material Company License-Out Agreement, is referred to herein as a “Material Contract”.
(b) Except as would not reasonably be expected to be material, individually or in the aggregate, to the Company and its Subsidiaries, taken as a whole, (i) each Material Contract is enforceable against the Company in accordance with its terms and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, (ii) the Company or its Subsidiaries, on the one hand, and, to the Knowledge of the Company, each other party to each Material Contract, on the other hand, have performed all obligations required to be performed by it under such Material Contract, and, to the Knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or would reasonably be expected to, (A) constitute such a violation or breach, (B) give any Person the right to accelerate the maturity or performance of any Material Contract, or (C) give any Person the right to cancel, terminate or modify any Material Contract, and (iv) as of the date of this Agreement, neither the Company nor any of its Subsidiaries has received written notice, or otherwise has Knowledge, (A) that any other party to any Material Contract intends to terminate or request material changes in any Material Contract, or (B) of any material dispute related to any Material Contract.
(c) As of the date of this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound by any Contract that (i) contains any provisions materially restricting the right of the Company or any of its Subsidiaries (xA) to engage in any line of business, compete or (y) to compete transact in any business or with any Person or operate in any geographical location;
geographic area, or (vB) to acquire any contract relating to the disposition material product or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product other material asset or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the CompanyPerson; or
(xiii) any contract relating to material Company IP.
(b) (i) All of the Material Contracts are valid and binding on the Company or its Subsidiaries, enforceable against it in accordance with its terms, and are in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the grants exclusive rights to license, market, sell or deliver any Company Product; or any Subsidiary nor, to the knowledge of the Company, any third party is in violation of any provision of, or failed to perform any obligation required under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the Company contains any “most favored nation” or any Subsidiary nor, to the knowledge similar provisions in favor of the Company, any third other party, is in breach, or has received written notice of material breach, of any Material Contract, except as disclosed in Schedule 3.13.
Appears in 2 contracts
Sources: Merger Agreement (Qlogic Corp), Merger Agreement (Cavium, Inc.)
Material Contracts. (a) For purposes Subsections (i) through (xvi) of Section 3.18(a) of the Company Disclosure Schedule set forth an accurate and complete list of all of the following types of Contracts (x) to which any Group Company is a party, excluding in each case, Contracts under which such Group Company has no outstanding rights or obligations and (y) have not been filed with or furnished to the SEC as an exhibit to the Company’s filings with the SEC (such Contracts as are required to be set forth in Section 3.18(a) of the Company Disclosure Schedule being the “Material Contracts”), and, other than this Agreement, “none of the Company or any of its Subsidiaries is a party to or bound by any Material Contract” shall mean Contracts not listed in Section 3.18(a) of the following Company Disclosure Schedule:
(i) any Contract that would be required to be filed by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act;
(ii) any Contract relating to (A) the formation, creation, operation, management or control of a partnership, joint venture, limited liability company or similar arrangement with the Group Company making investment in the amount of more than US$50,000,000, (B) strategic cooperation or partnership arrangements, or (C) other similar agreements outside the ordinary course of business involving a sharing of profits, losses, costs or liabilities by any Group Company that is material to the business of the Company;
(iii) any Contract involving a loan (other than accounts receivable from trade debtors in the ordinary course of business) or advance to (other than travel and entertainment allowances to the employees of the Company and any of its Subsidiaries extended in the ordinary course of business), or investment in, any person other than a Group Company or any Contract relating to the making of any such loan, advance or investment that is material to the financial status of the Company;
(iv) any Contract involving Indebtedness of the Company or any of its Subsidiaries in excess of US$50,000,000;
(v) any Contract granting or evidencing a Lien on any material properties or assets of the Company or any of its Subsidiaries, other than a Permitted Encumbrances;
(vi) any Contract 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 US$50,000,000 (by merger, purchase or sale of assets or stock or otherwise) or pursuant to which the Company or any Subsidiary is a party or any of their assets are bound:
(i) any its Subsidiaries have continuing, indemnification, guarantee, “material contractearn-out” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act), whether or not filed by the Company with the Commission;
(ii) any employment or consulting contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000;
(iii) any contract providing for indemnification or any guaranty by the Company, in each case that is material to the Company, other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course of business;
(iv) any contract that purports to limit in any material respect the right of the Company (x) to engage in any line of business, or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Companycontingent payment obligations;
(vii) any contract that obligates the Company to conduct business on an exclusive Contracts involving any resolution or preferential basis with settlement of any third partyactual or threatened material litigation, arbitration, claim or other dispute;
(viii) any partnershipContract for the employment of any officer, joint venture individual employee or similar contract that is material to other person by the CompanyCompany or any of its Subsidiaries on a full-time or consulting basis or any severance agreements calling for payments in excess of US$10,000,000 annually;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements non-competition Contract or other contractsContract that purports to limit, curtail or restrict in each case relating any material respect the ability of the Company or any of its Subsidiaries to indebtedness for borrowed moneycompete in any geographic area, whether as borrower industry or lender, in each case in excess line of $250,000, other than accounts receivables and payablesbusiness that is material to the business of the Company;
(x) any employee collective bargaining agreement Contract that contains a put, call or other contract with similar right pursuant to which the Company or any labor unionof 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$50,000,000;
(xi) any Contract (other contract under which than Contracts granting Company Options or Company RSUs) giving the Company is obligated other party the right to make terminate such Contract as a result of this Agreement or the consummation of the Transactions, including the Merger, where (A) such Contract requires any payment or incur costs in excess of $250,000 US$50,000,000 to be made by the Company or any of its Subsidiaries or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract is in any year and which is not otherwise described in clauses (i)–(x) aboveexcess of US$50,000,000;
(xii) any contract which is not otherwise described in clauses Contract that contains restrictions with respect to (i)-(xiA) above that is material payment of dividends or any distribution with respect to equity interests of the Company; orCompany or any of its Subsidiaries, (B) pledging of share capital of the Company or any of its Subsidiaries or (C) issuance of guarantee by the Company or any of its Subsidiaries;
(xiii) any contract relating material Contract providing for (A) a license, covenant not to s▇▇ or other right granted by any Third Party 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 Third Party 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;
(xiv) any material Contract outside the ordinary course of business of the Company IPor 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 ten percent (10%) 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;
(xv) any Contract which have not been covered by subsections (i) through (xiv) and involves consideration of more than US$50,000,000, in the aggregate, over the remaining term of such Contract; or
(xvi) any other Contract which could reasonably be expected to have a Company Material Adverse Effect.
(b) (i) All of the Each Material Contracts are Contract is a legal, valid and binding on the Company or its Subsidiariesobligation of a Group Company, as applicable, in full force and effect and enforceable against it the such Group Company in accordance with its terms, subject to the Bankruptcy and are 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 effecteffect and enforceable against such counterparty in accordance with its terms, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium the Bankruptcy and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policyEquity Exception, (iiiii) neither the no Group Company or any Subsidiary norand, to the knowledge of the Company, any third party no counterparty, is or is alleged to be in material breach or violation of any provision of, or failed to perform any obligation required under the provisions ofdefault under, any Material Contract, except as disclosed in Schedule 3.13 and ; (iiiiv) neither the Company or any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, no person intends to terminate or has received written notice of material breach, of cancel any Material Contract; (v) no Group Company has received any written claim of default under any such Material Contract and, except as disclosed in Schedule 3.13to the Company’s knowledge, no fact or event exists that would give rise to any claim of default under any Material Contract; and (vi) neither the execution 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, including any amendments thereto.
Appears in 2 contracts
Sources: Merger Agreement (Yao Jinbo), Merger Agreement (58.com Inc.)
Material Contracts. (a) For purposes As of this Agreementthe date hereof, “Material Contract” shall mean the following to which neither the Company or nor any Subsidiary is a party to or any of their assets are bound:bound by (such contracts being the “Material Contracts”):
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act), whether or not filed by the Company with the Commission;
(ii) any employment or consulting contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000;
(iii) any contract providing for indemnification or any guaranty by the Company, in each case that is material to the Company, other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course of business;
(iv) any contract that purports to limit in any material respect the right of the Company (x) to engage in any line of business, or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or other similar contract that is material to the Companyagreement or arrangement;
(ixii) any mortgagesagreement entered into on or after January 1, indentures2007 relating to the acquisition or disposition of any material business (whether by merger, guaranteesconsolidation, loans acquisition or credit sale of stock or assets or otherwise);
(iii) any agreement for the purchase or sale of services (including service agreements, security agreements statements of work and similar agreements), materials, supplies, goods, equipment or other contractstangible or intangible assets or group of such agreements with any particular Third Party providing for, in each case or that would reasonably be expected to result in, either (A) annual payments by or to the Company and its Subsidiaries of $100,000 or more or (B) aggregate payments by or to the Company and its Subsidiaries of $500,000 or more;
(iv) any agreement relating to indebtedness for borrowed moneymoney or the deferred purchase price of property (in either case, whether as borrower incurred, assumed, guaranteed or lender, in each case in excess of secured by any asset) with an aggregate committed or outstanding principal amount exceeding $250,000, other than accounts receivables and payables100,000;
(xv) any employee collective bargaining agreement containing any provision or covenant limiting the ability of the Company or any of its Subsidiaries (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) to (A) sell any services or products of or to any other contract Person or in any geographic region, (B) engage in any line of business or (C) compete with or to obtain services or products from any labor unionPerson or limiting the ability of any Person to provide services or products to the Company or any of its Subsidiaries (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries);
(xivi) any other contract under which agreement containing any provision or covenant that binds or purports to bind “Affiliates” of the Company is obligated or any Subsidiary of the Company or that would otherwise bind or purport to make payment bind Parent or incur costs in excess any of $250,000 in its Subsidiaries (other than the Company or any year and which is not otherwise described in clauses (i)–(xof its Subsidiaries) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to after the CompanyClosing; or
(xiiivii) any contract relating agreement providing for annual payments of $100,000 or more or aggregate payments of $500,000 or more containing any provision pursuant to material which the execution, delivery and performance of this Agreement, or the consummation of the transactions contemplated hereby, would require any consent or other action by any Person thereunder, constitute a default, or an event that, with or without notice or lapse of time or both, would constitute a default, thereunder, or cause or permit the termination, cancellation, acceleration or other change of any right or obligation or the loss of any benefit to which the Company IPor any of its Subsidiaries is entitled thereunder.
(b) Except for breaches, violations or defaults which would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (i) All of the each Material Contracts are Contract is valid and binding on the Company or its Subsidiaries, enforceable against it in accordance with its terms, and are in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium effect and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the Company or nor any Subsidiary norof its Subsidiaries, nor to the Company’s knowledge of the Companyany other party to any Material Contract, any third party is in violation of has violated any provision of, or failed to perform taken any obligation required action which, with or without notice, lapse of time, or both, would constitute a 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, or providing for the termination of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the Company or any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or has received written notice of material breach, of any Material Contract, except as disclosed in Schedule 3.13.
Appears in 2 contracts
Sources: Merger Agreement (Diamond Management & Technology Consultants, Inc.), Merger Agreement (PricewaterhouseCoopers LLP)
Material Contracts. (a) For purposes Section 2.19(a) of the Company Disclosure Schedule identifies, as of the date of this Agreement, each of the following Contracts of an Acquired Company (excluding any Company Plans, Foreign Company Plans, Company Real Property Leases, the Rhino Merger Agreement and any purchase or sales order issued in the ordinary course of business) (each, a “Material Contract”):
(i) any joint venture, partnership or limited liability company agreement which is material to the Company and its Subsidiaries (taken as a whole) relating to the formation, creation, operation, management or control of any such material joint venture, partnership or limited liability company;
(ii) any Contract creating, guaranteeing or incurring indebtedness for borrowed money in excess of $5,000,000;
(iii) any Contract with a supplier or vendor of the Company or any of its Subsidiaries that resulted in aggregate payments by the Company and its Subsidiaries to such supplier or vendor in excess of $8,000,000 for the fiscal year ended December 31, 2025;
(iv) any Contract for the acquisition or disposition (by merger, consolidation, purchase or sale of stock or of assets or otherwise) of any Entity, business or assets that constitute a business or division of any Person, or all or substantially all of the assets of any Person (A) after the date hereof and with a fair market value or a purchase price (including assumption of debt) in excess of $8,000,000 and under which, after the Closing, the Company or any of its Subsidiaries will have any material financial obligations or (B) under which, after the Closing, the Company or any of its Subsidiaries will have any material continuing indemnification obligations or “earn-out” shall mean or similar contingent payment obligations;
(v) except with respect to franchising arrangements as described in Section 4.2(b)(v) of the following Company Disclosure Schedule, any Contract that (A) contains any covenant that expressly limits, curtails or restricts the ability of the Company or any of its Subsidiaries to engage in any line of business, compete with any Person or conduct activities in any geographic area, in each case that would reasonably be expected to be material to the operations of the Company and its Subsidiaries (taken as a whole) or (B) grants to any third party a right of first refusal, first offer or first negotiation or a call or put right with respect to any asset that is material to the Company and its Subsidiaries (taken as a whole);
(vi) any Contract that is between the Company or any of its Subsidiaries, on the one hand, and any director, officer or stockholder holding five percent (5%) or more of the voting power of the Company Common Stock, on the other hand, other than (A) any employment agreements, (B) relating to transactions conducted on an arm’s-length basis or (C) any agreements with consideration of less than $5,000,000;
(vii) any Contract (A) under which the Company or any of its Subsidiaries grants or is granted (x) a covenant not to use or assert any Intellectual Property or (y) a license on an exclusive basis to any Intellectual Property or (B) material to the conduct of the business of the Company and its Subsidiaries (taken as a whole) under which the Company or any of its Subsidiaries grants a license to a third party with respect to Company Owned IP, or acquires, is granted a license to or otherwise permitted to use Intellectual Property of a third party, other than, in the case of Subsection (B), (1) Contracts involving the licensing of Intellectual Property where such licensed Intellectual Property is merely incidental to the transaction contemplated in such Contract, the commercial purpose of which is something other than such license of Intellectual Property, (2) Contracts relating to the non-exclusive license, support or service of the Company’s products and services in the ordinary course of business on the Company’s standard form, (3) Contracts for (x) the license of generally commercially available, non-customized technology pursuant to a non-exclusive license, with annual fees of less than $5,000,000, or (y) Open Source Software, (4) non-disclosure agreements entered into in the ordinary course of business, or (5) employee invention assignment agreements entered into in the ordinary course of business on the Company’s standard form;
(viii) any tax receivable agreements;
(ix) master franchise agreements for the United States independent regions, Quebec and Europe (collectively, the “Master Franchise Agreements”);
(x) 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, or employees;
(xi) each agreement that contains any “most favored nation” or most favored customer provision, call or put option, preferential right or rights of first or last offer, negotiation or refusal to which the Company or any Subsidiary is a party of its Subsidiaries or any of their assets are bound:respective Affiliates is subject and that is material to the business of the Company and its Subsidiaries, taken as a whole, except for any agreement in which such provision is solely for the benefit of the Company or any of its Subsidiaries; and
(ixii) any Contract not otherwise described in any other Subsection of this Section 2.19(a) that would constitute a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act), whether or not filed by the Company with the Commission;
(ii) any employment or consulting contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000;
(iii) any contract providing for indemnification or any guaranty by the Company, in each case that is material to the Company, other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course of business;
(iv) any contract that purports to limit in any material respect the right of the Company (x) to engage in any line of business, or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IP.
(b) (i) All of the Each Material Contracts are Contract is valid and binding on the Company or its Subsidiariesin full force and effect, and is enforceable against it in accordance with its terms, and are in full force and effect, subject to laws the Enforceability Limitations and except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company. None of general application relating to bankruptcythe Acquired Companies, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the Company or any Subsidiary norand, to the knowledge Knowledge of the Company, any third party is in violation of any provision ofno other Person, has violated or breached, or failed to perform committed any obligation required under the provisions ofdefault under, any Material Contract, except as disclosed would not reasonably be expected to have, individually or in Schedule 3.13 and (iii) neither the Company or any Subsidiary noraggregate, to the knowledge of a Material Adverse Effect on the Company, any third party, is in breach, or has received written notice of material breach, of any Material Contract, except as disclosed in Schedule 3.13.
Appears in 2 contracts
Sources: Arrangement Agreement and Plan of Merger (Rome Wildlife, Inc.), Arrangement Agreement and Plan of Merger (RE/MAX Holdings, Inc.)
Material Contracts. (a) For purposes Except for contracts listed in Section 4.12 of this Agreement, “Material Contract” shall mean the following to which the Company Disclosure Letter or any Company Material Contract or Company Lease that is entered into after the date hereof in accordance with Section 6.1, none of the Company, Company LP or any Company Subsidiary is a party to or bound by any contract in effect as of their assets are boundthe date of this Agreement that:
(i) any “material contract” is required to be filed as an exhibit to the Company’s Annual Report on Form 10-K pursuant to Item 601(b)(2), (as such term is defined in Item 601(b)(104), (9) or (10) of Regulation S-K of the Securities Act), whether or not filed promulgated by the Company with the CommissionSEC;
(ii) any employment has resulted, is expected to result, or consulting contract is reasonably likely to result, in annual revenues or expenditures (in each case other than principal and/or interest payments or the deposit of other reserves with respect to which the Company has continuing obligations as of the date hereofdebt obligations) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000500,000 and is not cancelable within sixty (60) days without penalty to the Company or any Company Subsidiary, except for any Company Lease or any Company Brokerage Agreement;
(iii) contains any contract providing for indemnification non-compete or exclusivity provisions with respect to any line of business or geographic area that restricts the business of the Company or any guaranty Company Subsidiary, or that otherwise restricts the lines of business conducted by the CompanyCompany or any Company Subsidiary or the geographic area in which the Company or any Company Subsidiary may conduct business;
(iv) is an agreement that obligates the Company or any Company Subsidiary to indemnify (A) any past or present directors, in each case that officers, trustees, employees and agents of the Company or any Company Subsidiary pursuant to which the Company or Company Subsidiary is material to the Companyindemnitor, other than any contract providing for indemnification of customers operating agreements or other Persons property management agreements or any similar agreement pursuant to contracts entered into which a Company Subsidiary that is not wholly owned, directly or indirectly, by the Company provides such an indemnification to any such directors, officers, trustees, employees or agents in connection with the indemnification by such non-wholly owned Company Subsidiary or another Company Subsidiary thereunder or (B) other third parties for obligations of or losses or damages incurred by such third parties, where such indemnification obligations are material to the Company and Company Subsidiaries, taken as a whole, and not made in the ordinary course of business;
(ivv) pursuant to which the Company or any Company Subsidiary acquired (A) a Specified Property or (B) any contract that purports to limit other assets or businesses of any other person, in any material respect each case since January 1, 2010 where the right purchase price therefor exceeded $10,000,000;
(vi) constitutes a letter of credit, similar arrangement or debt obligation or guaranty or other contingent obligation of the Company or any Company Subsidiary with a principal amount outstanding (xor, in the case of a guaranty or other contingent obligation, with a principal amount of the underlying obligation outstanding) to engage in any line as of business, or (y) to compete with any Person or operate in any geographical locationthe date hereof greater than $10,000,000;
(vvii) any contract relating to would prohibit or materially delay the disposition or acquisition, directly or indirectly consummation of the Mergers as contemplated by this Agreement;
(by merger or otherwise), by viii) requires the Company or any Company Subsidiary to dispose of or acquire assets or properties (other than in connection with the expiration of a Company Lease) with a fair market value in excess of $250,000;
(vi) 10,000,000, or involves any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product pending or service from a given third partycontemplated merger, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture consolidation or similar contract that is material to the Companybusiness combination transaction;
(ix) any mortgagesconstitutes an interest rate cap, indenturesinterest rate collar, guaranteesinterest rate swap, loans or credit agreements, security agreements forward purchasing contract or other contracts, in each case contract or agreement relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payablesa hedging transaction;
(x) sets forth the operational terms of a joint venture, partnership, joint development agreement, limited liability company or strategic alliance of the Company or any employee collective bargaining agreement or other contract with any labor unionCompany Subsidiary (each a “JV Agreement”);
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) aboveconstitutes a collective bargaining agreement;
(xii) contains restrictions with respect to payment of dividends or any contract which is not otherwise described other distribution in clauses respect of the equity interests of the Company or any Company Subsidiary;
(i)-(xixiii) above that is material relates to the Companyacquisition or divestiture of the capital stock or other equity interests of any Person (other than the Company of a Company Subsidiaries) by the Company or a Company Subsidiary;
(xiv) is a stockholder or equityholder agreement, investor rights agreement, registration rights agreement or other similar contract between the Company or any Company Subsidiary, on one hand, and any stockholder or equityholder of the Company or a Company Subsidiary, on the other, granting any Person investor rights, registration rights, director designation rights or similar rights;
(xv) constitutes a Company Tax Protection Agreement;
(xvi) constitutes a loan to any Person (other than a wholly owned Company Subsidiary) by the Company or any Company Subsidiary (other than advances made pursuant to and expressly disclosed in the Company Leases or pursuant to any disbursement agreement, development agreement, or development addendum entered into in connection with a Company Lease with respect to the development, construction, or equipping of Company Properties or the funding of improvements to Company Properties) in an amount in excess of $10,000,000;
(xvii) a ground or other lease pursuant to which the Company or any Company Subsidiary is lessee or sublessee of any of the Specified Properties; or
(xiiixviii) as to any non-residential Company Property, (A) requires payment after the date hereof of any commission (including leasing commissions or brokerage fees) (each a “Company Brokerage Agreement”) in connection with either (x) a renewal of an existing Material Company Lease or (y) the entry after the date hereof into a new Material Company Lease identified on Section 6.1(b)(xii) of the Company Disclosure Letter or (B) requires payment after the date hereof of tenant improvement costs, allowances or other concessions under a Material Company Lease. Each contract relating of the type described in this Section 4.12(a) is referred to material herein as a “Company IPMaterial Contract.”
(b) (i) All of the Each Company Material Contracts are valid Contract is legal, valid, binding and binding enforceable on the Company, Company or its Subsidiaries, enforceable against it in accordance with its terms, LP and are in full force and effect, subject each Company Subsidiary to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the Company or any Subsidiary norextent such Person is a party thereto and, to the knowledge of the Company, any third each other party thereto, and is in violation of any provision of, or failed to perform any obligation required under the provisions of, any Material Contractfull force and effect, except as disclosed may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in Schedule 3.13 a proceeding in equity or at Law). Except as, individually or in the aggregate, have not had and (iii) neither would not reasonably be expected to have a Company Material Adverse Effect, the Company, Company or any LP and each Company Subsidiary norhas performed all obligations required to be performed by it prior to the date hereof under each Company Material Contract and, to the knowledge of the Company, each other party thereto has performed all obligations required to be performed by it under such Company Material Contract. None of the Company, Company LP or any third party, is in breach, or Company Subsidiary has received written notice of material breach, of any violation or default under any Company Material Contract, except as disclosed for violations or defaults that would not, individually or in Schedule 3.13the aggregate, reasonably be expected to have a Company Material Adverse Effect. The Company has made true and correct copies of each Material Contract available to Parent.
Appears in 2 contracts
Sources: Merger Agreement (Thomas Properties Group Inc), Merger Agreement (Parkway Properties Inc)
Material Contracts. (a) For purposes of this Agreement, “Material Contract” shall mean the following to which Neither the Company or nor any of its Subsidiary is a party to or bound by any of their assets are boundContract:
(i) any which, as of the date hereof, and except as filed with the Company SEC Documents, is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act), whether or not filed promulgated by the Company with the CommissionSEC);
(ii) any employment or consulting contract (in each case with respect that is reasonably expected to which require the payment by the Company has continuing obligations as of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary a dollar amount in excess of $200,000500,000 or extends for a period of 12 months or more (other than any contract or commitment that is terminable on 90 days or less notice without penalty or any confidentiality or non disclosure agreement);
(iii) any contract providing for indemnification with employees and contracts with other consultants, which are reasonably expected to involve payments by the Company or any guaranty Subsidiary of more than annual compensation of $150,000;
(iv) with respect to any joint venture or partnership arrangements, or with respect to any license or distribution agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Subsidiary with any Third Party and relating to any product or planned product of the Company;
(v) pursuant to which any Indebtedness of the Company or any of its Subsidiaries greater than $25,000 is or may be incurred other than the Loan Documents and any Contract between or among the Company and/or wholly-owned Subsidiaries of the Company, in each case that is material to the Company, other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into which the Company guarantees the performance of the obligations of any Third Party;
(vi) relating to any pending acquisition or disposition by the Company or any of its Subsidiaries of properties or assets, except for acquisitions and dispositions of properties, assets and inventory in the ordinary course of business;
(ivvii) limiting the ability of the Company or any contract that purports of its Subsidiaries or their respective successors and assigns to limit compete in any material respect line of business or with any Person or in any geographic area, or restricting the right of the Company (x) to engage in any line of business, and its Subsidiaries or (y) to compete with their respective successors and assignes from selling or purchasing from any Person or operate in hiring any geographical location;
(v) Person or that provides for any contract relating to standstill or similar obligations restricting the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company ability of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with purchase securities of any third partyother entity;
(viii) for the sale of goods or services to any partnership, joint venture or similar contract that is material to the CompanyGovernmental Authority;
(ix) providing for any mortgages, indentures, guarantees, loans contingent payments by the Company or credit agreements, security agreements or other contracts, any of its Subsidiaries exceeding $250,000 in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payablesany one case;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which not entered into in the ordinary course of business between the Company is obligated to make payment or incur costs in excess any of $250,000 in its Subsidiaries, on the one hand, and any year and which is not otherwise described in clauses (i)–(x) above;
(xii) Affiliate thereof other than any contract which is not otherwise described in clauses (i)-(xi) above that is material to Subsidiary of the Company; or
(xiiixi) any contract relating requiring a consent to, or otherwise containing a provision restricting a “change of control,” or that would reasonably be expected to material Company IPprevent, delay or impair the consummation of the transactions contemplated by this Agreement.
(b) Each Contract of the type described in Section 4.14(a), whether or not set forth in Section 4.14(a) of the Company Disclosure Schedule (including Contracts which would be required to be set forth in Section 4.14(a) of the Company Disclosure Schedule if such Contracts were not filed as exhibits to the Company SEC Documents), is referred to herein as a “Material Contract.”
(c) Except for matters that would not have a Company Material Adverse Effect, (i) All of the each Material Contracts are Contract is a valid and binding on obligation of the Company or its Subsidiariesa Subsidiary of the Company, as applicable, in full force and effect and enforceable against it the Company or such Subsidiary in accordance with its terms, and are in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium the Bankruptcy and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remediesEquity Exceptions, and to limitations there is no breach, violation or default by the Company or any of public policyits Subsidiaries under any of the Material Contracts, (ii) neither the Company or no Material Contract has been canceled by any Subsidiary norother party thereto, (iii) to the knowledge of the Company, any third no other party is in breach or violation of any provision of, or failed to perform any obligation required under the provisions ofdefault under, any Material Contract, except as disclosed in Schedule 3.13 Contract and (iiiiv) neither the Company or nor any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or its Subsidiaries has received written notice of material breacha default under any Material Contract or of any event or condition which, after notice or lapse of time or both, will constitute a default on the part of the Company or any of its Subsidiaries under any Material Contract. As of the date hereof, except true and correct copies of all Material Contracts (as disclosed in Schedule 3.13amended or modified) are either publicly filed with the SEC or the Company has made available to Parent copies of such Contracts.
Appears in 2 contracts
Sources: Merger Agreement (Thoratec Corp), Merger Agreement (HeartWare International, Inc.)
Material Contracts. (a) For purposes Schedule 3.14 sets forth a true, correct and complete list of this Agreementall existing or pending contracts, “Material Contract” shall mean the following commitments, licenses, agreements, obligations or arrangements, whether oral or written, formal or informal, to which the Company any Borrower Party or any Subsidiary of its Subsidiaries is a party (or intend to become a party) or to which any of their its assets are or properties is bound (or may become bound:):
(i) under which any “material contract” (as such term Borrower Party or any of its Subsidiaries is defined indemnified for or against any liability in Item 601(b)(10) excess of Regulation S-K $250,000 or under which any Borrower Party or any of the Securities Act), whether its Subsidiaries is or not filed by the Company with the Commissioncould be obligated to indemnify any Person in excess of $100,000;
(ii) under which any employment Borrower Party or consulting contract (in each case with respect any of its Subsidiaries leases personal property from or to which the Company has continuing obligations as of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000third parties;
(iii) for the purchase or sale of products or other personal property or for the furnishing or receipt of services by any contract providing for indemnification Borrower Party or any guaranty by of its Subsidiaries (A) which calls for performance over a period of more than one (1) year and involves payments of more than $100,000 in the Companyaggregate or (B) in which any Borrower Party or any of its Subsidiaries has agreed to purchase a minimum quantity of goods or services in excess of $200,000 in value or has agreed to purchase goods or services exclusively from any Person (provided, in each case however, that it is material agreed that the Borrower shall not be required to the Company, other than list on Schedule 3.14 any contract providing for indemnification of customers or other Persons pursuant to poultry purchase contracts entered into in the ordinary course of business, provided that such contracts will be deemed to be Material Contracts);
(iv) any contract that purports to limit (A) granting representation, marketing or distribution rights, other than food brokers’ agreements entered into in any material respect the right of the Company (x) to engage in any line ordinary course of business, or (yB) relating to compete with any Person or operate in any geographical locationIntellectual Property;
(v) regarding the financing of its business or any contract relating to the disposition part of its business or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value in excess of $250,000operations;
(vi) establishing any contract that contains partnership, any provision that requires the purchase of all of the Company’s requirements for a given product joint venture or service from a given third party, which product or service is material to the Companyany strategic alliance;
(vii) under which any contract that obligates the Company to conduct business on an exclusive Borrower Party or preferential basis with any third partyof its Subsidiaries has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) Indebtedness (including Capital Lease Obligations);
(viii) concerning any partnership, joint venture confidentiality obligations entered into outside of the ordinary course of business or similar contract that is material to the Companyany covenants or agreements restricting it from carrying on any business or from competing in any line of business or with any Person;
(ix) with officers, directors, employees, consultants or independent contractors of any mortgagesBorrower Party or any of its Subsidiaries;
(x) resulting in the creation or incurrence of any Lien (including any precautionary lease filings);
(xi) involving any Affiliates of any Borrower Party or any of its Subsidiaries;
(xii) under which the consequences of a default or termination could have a Material Adverse Effect on any Borrower Party or any of its Subsidiaries, indentureswhether individually or in the aggregate;
(xiii) under which any Borrower Party or any of its Subsidiaries will (A) receive aggregate payments from customers, guarantees, loans or credit agreements, security agreements (B) make aggregate payments to vendors or other contracts, in each case relating suppliers or (C) make or receive aggregate payments to indebtedness for borrowed money, whether as borrower or lenderfrom any other Persons, in each case in excess of $250,000, other than accounts receivables and payables500,000 per annum;
(xxiv) any employee collective bargaining agreement entered into by, or other contract with binding upon, the Borrower or any labor union;of its Affiliates; and
(xixv) not entered into in the ordinary course of business and described in response to any other contract under which of the Company is obligated to make payment foregoing clauses. All of the types of contracts, commitments, licenses, agreements, obligations or incur costs in excess of $250,000 in any year and which is not otherwise arrangements described in clauses (i)–(xi) through (xv) above;
(xii) any contract which is not otherwise , together with the real property leases and other interests described in clauses (i)-(xi) above that is material Section 3.25, whether entered into prior to, on or after the Effective Date, are collectively referred to herein as the “Material Contracts.” At the request of the Lender, the Borrower shall deliver to the Company; or
(xiii) any contract relating to material Company IPLender a true, correct and complete copy of each of the written Material Contracts, and a written summary of each of the oral Material Contracts, including all amendments, supplements or other modifications thereto.
(b) Each Material Contract existing as of the date hereof is (i) All of the Material Contracts are a legal, valid and binding on obligation of the Company Borrower Party or its Subsidiariesany Subsidiary that is a party thereto, enforceable against it in accordance with its termsterms (assuming the enforceability of such Material Contract against the other parties thereto), (ii) to the best knowledge of the Borrower Parties, a legal, valid and are binding obligation of the other parties thereto, enforceable against such other parties in accordance with its terms (assuming the enforceability of such Material Contract against any Borrower Party or any of its Subsidiaries party thereto) and (iii) in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither effect on the Company date hereof. Any Borrower Party or any Subsidiary norof its Subsidiaries, on the one hand, and, to the best knowledge of the CompanyBorrower Parties, all other parties to the existing Material Contracts, on the other hand, are in substantial compliance with the terms thereof, and no default or event of default by any third party is in violation of any provision of, or failed to perform any obligation required under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the Company Borrower Party or any Subsidiary norof its Subsidiaries, as the case may be, or, to the best knowledge of the CompanyBorrower Parties, any third partyother party thereto exists thereunder.
(c) No Borrower Party or any of its Subsidiaries is a party to any contract, is in breachcommitment, license, agreement, obligation or arrangement that restricts it from carrying on its business or any part thereof, or has received written notice from competing in any line of material breach, of business or with any Material Contract, except as disclosed in Schedule 3.13Person.
Appears in 2 contracts
Sources: Loan and Security Agreement (Overhill Farms Inc), Loan and Security Agreement (Levine Leichtman Capital Partners Ii Lp)
Material Contracts. (a) For all purposes of and under this Agreement, a “Material Contract” shall mean the following to which the Company or any Subsidiary is a party or any of their assets are boundmean:
(i) any agreement that would be required to be filed by the Company as a “material contract” (as such term is defined in pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or that would be required to be disclosed under Item 404 of Regulations S-K under the Securities Act), whether or not filed by the Company with the Commission;
(ii) any employment or consulting contract Contract (in each case with respect to case, under which the Company has continuing obligations as of the date hereof) with respect to any current employee or former consultant in the United States that either (xA) executive officer is for a fixed term of employment or services (but in the case of consulting agreements, only if such fixed term exceeds 2 months) or (B) provides for severance or termination payments in an amount in excess of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000’s standard severance policy;
(iii) any contract Contract (A) limiting the freedom or right of the Company or any of its Subsidiaries to engage in any line of business, to make use of any material Intellectual Property or to compete with any Person in any line of business or in any location, in any such case, in a manner that would be material to the Company and its Subsidiaries, taken as a whole, or (B) containing exclusivity obligations or restrictions or otherwise prohibiting or limiting the freedom or right of the Company or its Subsidiaries to sell, distribute or manufacture any products or services or to purchase or otherwise obtain any Software, components, parts or subassemblies, or to exploit any material tangible or intangible property or assets, in any such case, in a manner that would be material to the Company and its Subsidiaries, taken as a whole;
(iv) any Contract (A) relating to the license, disposition or acquisition (directly or indirectly) by the Company or any of its Subsidiaries of a material amount of assets other than in the ordinary course of business consistent with past practice, (B) pursuant to which the Company or any of its Subsidiaries will acquire any material interest in any other Person, other business enterprise other than the Company’s Subsidiaries or any real property, or (C) for the acquisition or disposition of any business containing any profit sharing arrangements or “earn-out” arrangements, indemnification obligations or other contingent payment obligations;
(v) any Company Intellectual Property Agreements set forth in Section 4.15(b) of the Company Disclosure Letter;
(vi) any Contract that relates to the formation, creation, operation, management or control of any (A) joint venture or (B) partnership, collaboration, limited liability company, joint marketing, distribution or similar arrangement that, in the case of clause (B), is material to the Company and its Subsidiaries, taken as a whole, or pursuant to which the Company or any of its Subsidiaries has an obligation (contingent or otherwise) to make a material investment in or material extension of credit to any Person;
(vii) any Contract or series of related Contracts for the purchase of materials, supplies, goods, services, equipment or other assets under which the Company and the Company’s Subsidiaries made payments of $1,000,000.00 or more during the twelve-month period ending on the Company Balance Sheet Date;
(viii) any sales, distribution, agency or other similar agreement providing for indemnification the sale by the Company or any guaranty by of the Company’s Subsidiaries of materials, supplies, goods, services, equipment or other assets that is with one of the 50 largest customers of the Company and its Subsidiaries, or one of the 20 largest resellers of the Company and its Subsidiaries, in each case that is material to determined by revenues received by the Company and its Subsidiaries on a consolidated basis during the fiscal year ended March 31, 2010;
(ix) any agreement (including any “take-or-pay” or keepwell agreement) under which (A) any Person (other than the Company or any of the Company’s Subsidiaries) has directly or indirectly guaranteed any liabilities or obligations of the Company or any of the Company’s Subsidiaries or (B) the Company or any of the Company’s Subsidiaries has directly or indirectly guaranteed any liabilities or obligations of any other Person (other than the Company or any of the Company’s Subsidiaries), in each case of clauses (A) and (B), other than any contract providing endorsements for indemnification the purpose of customers or other Persons pursuant to contracts entered into collection in the ordinary course of business;
(ivx) any contract that purports to limit in any material respect the right of Government Contract under which the Company (x) to engage in any line of business, or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of and the Company’s requirements for a given product Subsidiaries made or service from a given third party, which product received payments of $1,000,000.00 or service is material to more during the Company;
(vii) any contract that obligates twelve-month period ending on the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor unionBalance Sheet Date;
(xi) any other contract under which Contract that involves or relates to indebtedness for borrowed money (whether incurred, assumed, guaranteed or secured by any asset) outside the Company is obligated to make payment or incur costs in excess ordinary course of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;business; and
(xii) any contract Contract, or group of Contracts with a Person (or group of affiliated Persons), the termination or breach of which would have a Company Material Adverse Effect and is not otherwise described in disclosed pursuant to clauses (i)-(xii) above that is material to the Company; or
through (xiiixi) any contract relating to material Company IPabove.
(b) Section 4.12(b) of the Company Disclosure Letter contains a complete and accurate list of all Material Contracts to or by which the Company or any of its Subsidiaries is a party or is bound as of the date of this Agreement. As of the date hereof, true and complete copies of all Material Contracts (including all exhibits and schedules thereto) have been (i) All publicly available in the Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) database of the SEC or (ii) made available to Parent.
(c) Each Material Contracts are Contract is valid and binding on the Company or its Subsidiarieseach such Subsidiary of the Company party thereto) and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, enforceable against it the Company or each such Subsidiary of the Company party thereto in accordance with its terms, and are in full force and effect, subject to laws of general application relating to except that such enforceability (i) may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws affecting or relating to or affecting creditors’ rights generally and rules (ii) is subject to general principles of law governing specific performance, injunctive relief or other equitable remediesequity, and neither the Company nor any of its Subsidiaries that is a party thereto, nor, to limitations the Knowledge of public policythe Company, any other party thereto, is in material breach of, or material default under, any such Material Contract, and no event has occurred that with notice or lapse of time or both would constitute such a material breach or material default thereunder by the Company or any of its Subsidiaries, or, to the Knowledge of the Company, any other party thereto.
(d) With respect to each Government Contract to which a U.S. federal Governmental Authority is a party or that is a Material Contract, to the Knowledge of the Company, (i) all representations and certifications executed, acknowledged or set forth in or pertaining to such Governmental Contract were complete and correct in all material respects as of their effective date, and the Company and Company’s Subsidiaries, as applicable, have complied in all material respects with all such representations and certifications; (ii) neither the United States government nor any prime contractor, subcontractor or other Person has notified the Company or any Subsidiary norof the Company’s Subsidiaries that the Company or any of the Company’s Subsidiaries has materially breached or materially violated any material certification, representation, clause, provision or requirement, pertaining to such Government Contract.
(e) To the knowledge Knowledge of the Company, any third party is in violation of any provision of, or failed to perform any obligation required under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the Company nor any of the Company’s Subsidiaries nor any of their respective directors, officers or employees is or has been under administrative, civil, or criminal investigation, or indictment or audit by any Subsidiary norGovernmental Authority with respect to any alleged irregularity, misstatement or omission arising under or relating to any Government Contract to which a U.S. federal Governmental Authority is a party or that is a Material Contract. Neither the knowledge Company nor any of Company’s Subsidiaries has conducted or initiated any internal investigation or made a voluntary disclosure to any Governmental Authority with respect to any alleged irregularity, misstatement or omission arising under or relating to a Government Contract to which a U.S. federal Governmental Authority is a party or that is a Material Contract. To the Knowledge of the Company, neither the Company nor any third partyof the Company’s Subsidiaries nor any of their respective directors, is in breachofficers or employees has been suspended or debarred from doing business with any Governmental Authority or is, or at any time has received written notice been, the subject of material breach, a finding of non-responsibility or ineligibility for contracting with any Material Contract, except as disclosed in Schedule 3.13Governmental Authority.
Appears in 2 contracts
Sources: Merger Agreement (Hewlett Packard Co), Merger Agreement (Hewlett Packard Co)
Material Contracts. (a) For purposes Schedule 3.16(a) sets forth a true, correct and complete list of this Agreement, “Material Contract” shall mean the following all Contracts described in clauses (i) through (xv) below to which any member of the Company or any Subsidiary Group is a party or by which any member of the Company Group, or any of their assets the Company Group Assets, are boundbound (each Contract required to be set forth on Schedule 3.16(a), other than a Company Benefit Plan, a “Company Material Contract”) and the Company has delivered to the SPAC, true, complete and correct copies of each:
(i) contains covenants that materially limit the ability of any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K member of the Securities Act)Company Group (A) (1) to compete in any line of business, whether with any Person or not filed in any geographic area, (2) to sell or provide any service or product, or (3) to solicit any Person, other than in respect of customary non-disclosure agreements entered into by any member of the Company with Group in the Commissionordinary course of business or (B) to purchase or acquire an Interest in any other Person;
(ii) with any employment or consulting contract (in each case with respect Governmental Authority to which the a Company has continuing obligations as of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000is a party;
(iii) any contract providing for the formation of any joint venture or profit-sharing agreement or arrangement;
(iv) providing for the indemnification by a Company Group member of any Person or the assumption of any guaranty by the CompanyTax, in each case that is material to the Companyenvironmental or other Liability of any Person, other than any contract providing such Contract for indemnification the purchase or sale of customers goods and services executed in the ordinary course of business;
(v) evidences Indebtedness (whether incurred, assumed, guaranteed or secured by any asset) by and between members of the Company Group having an outstanding principal amount in excess of $500,000;
(vi) was entered into during the past two (2) years involving the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets, including real property, with an aggregate value in excess of $500,000 (other Persons than Contracts (A) in which the applicable acquisition or disposition has been consummated and there are no material obligations ongoing, (B) in the ordinary course of business consistent with past practice or (C) between the members of the Company Group);
(vii) pursuant to contracts which payments or receipts by any member of the Company Group under such Contract or Contracts exceeded $500,000 in the fiscal year ending December 31, 2022, in the aggregate;
(viii) is with any Top Supplier, or Top Customer excluding any non-disclosure agreements, purchaser order forms, sales acknowledgement forms or similar agreements entered into in the ordinary course of business;
(ivix) pursuant to which a Company Group member is required to purchase its total requirements of any contract product or service from a third party or that purports to limit in contain “take or pay” provisions;
(x) is between any material respect the right member of the Company Group and any directors, officers or employees of a Company Group member (xincluding, for the avoidance of doubt, the Key Management) or any Related Person and which are not cancellable without material penalty or without more than ninety (90) days’ notice;
(xi) is a collective bargaining agreement or Contract with any Union to engage which the Company is a party;
(xii) obligates the Company Group to make any capital commitment or expenditure in excess of $500,000 (including pursuant to any line joint venture);
(xiii) relates to a settlement entered into within three (3) years prior to the date of this Agreement or under which any member of the Company Group has outstanding obligations (other than customary confidentiality obligations) that would be reasonably likely to involve payments in excess of $500,000 after the date of this Agreement;
(xiv) relates to the development, ownership, licensing or use of any Intellectual Property by, to or from any member of the Company Group (the “Company IP Licenses”), other than (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for Software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $50,000 per year, (B) employee or consultant invention assignment agreements entered into on a Company Group’s standard form of such agreement, (C) confidentiality agreements entered into in the ordinary course of business, (D) non-exclusive licenses from or to suppliers, customers or distributors to any member of the Company Group entered into in the ordinary course of business, or (yE) feedback and ordinary course trade name or logo rights that are not material to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by member of the Company of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the CompanyGroup; or
(xiiixv) any contract relating the termination of which, would be otherwise material to material the Company IPGroup and not covered by clauses (i) through (xiv) above.
(b) No member of the Company Group 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 default under the terms of any Company Material Contract, and no event has occurred or not occurred through any of the Company Group’s action or inaction or, to the Knowledge of the Company, through the action or inaction of any third party, that with notice or the lapse of time or both would constitute a breach of or default under the terms of any Company Material Contract, in each case, except as would not reasonably expected to have, individually or in the aggregate, a material and adverse effect on the Company Group, taken as a whole. Each Company Material Contract (i) All of the Material Contracts are is a valid and binding on obligation of the member of the Company or its SubsidiariesGroup that is party thereto and, enforceable against it in accordance with its termsto the Knowledge of the Company, of each other party thereto, and are (ii) is in full force and effect, subject to laws of general application relating the Remedies Exception, in each case, except as would not be reasonably expected to bankruptcyhave, insolvencyindividually or in the aggregate, fraudulent transfera material and adverse effect on the Company Group, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remediestaken as a whole. There are no, and to limitations of public policywithin the last three (3) years there have not been, (ii) neither the Company or any Subsidiary nordisputes pending or, to the knowledge Knowledge of the Company, threatened in writing with respect to any third party is in violation Company Material Contract, and the Company Group has not received any written notice of the intention of any provision ofother party to a Company Material Contract to terminate for default, convenience or failed to perform otherwise any obligation required under the provisions of, any Company Material Contract, except as disclosed would not be reasonably expected to have, individually or in Schedule 3.13 the aggregate, a material and (iii) neither adverse effect on the Company or any Subsidiary norGroup, to the knowledge of the Company, any third party, is in breach, or has received written notice of material breach, of any Material Contract, except taken as disclosed in Schedule 3.13a whole.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (TMT Acquisition Corp.), Merger Agreement (TMT Acquisition Corp.)
Material Contracts. (a) For purposes Except for those agreements and other documents filed as exhibits or incorporated by reference to Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2011 or filed or incorporated in any of this Agreementits other Company SEC Reports filed since January 1, “Material Contract” shall mean 2010 and prior to the following to which the date hereof or as Previously Disclosed, neither Company or nor any Subsidiary of its Subsidiaries is a party to, bound by or subject to any of their assets are bound:
agreement, contract, arrangement, commitment or understanding (iwhether written or oral) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act)each, whether or not filed with the SEC, a “Material Contract”): (i) that is a “material contract” within the meaning of Item 601(b)(10) of the SEC’s Regulation S-K; (ii) that contains a non-compete or client or customer non-solicit requirement or any other provisions that materially restricts the conduct of, or the manner of conducting, any line of business of Company or any of its affiliates (or, upon consummation of the Merger, of Purchaser or any of its affiliates); (iii) that obligates Company or any of its affiliates (or, upon consummation of the Merger, Purchaser or any of its affiliates) to conduct business with any third party on an exclusive or preferential basis; (iv) that requires referrals of business or requires Company or any of its affiliates to make available investment opportunities to any person on a priority or exclusive basis; (v) that relates to the incurrence of indebtedness by Company or any of its Subsidiaries (other than deposit liabilities, trade payables, federal funds purchased, advances and loans from the Federal Home Loan Bank and securities sold under agreements to repurchase, in each case incurred in the ordinary course of business consistent with past practice) including any sale and leaseback transactions, capitalized leases and other similar financing transactions; (vi) that grants any right of first refusal, right of first offer or similar right with respect to any material assets, rights or properties of Company or any of its Subsidiaries; (vii) that limits the payment of dividends by Company or any of its Subsidiaries; (viii) that relates to a material joint venture, partnership, limited liability company agreement or other similar agreement or arrangement with any third party, or to the formation, creation or operation, management or control of any material partnership or joint venture with any third parties, except in each case that relate to merchant banking investments by the Company with or its Subsidiaries in the Commission;
ordinary course of business; (iiix) any employment that relates to an acquisition, divestiture, merger or consulting contract similar transaction and which contains representations, covenants, indemnities or other obligations (including indemnification, “earn-out” or other contingent obligations) that are still in each case with respect to which the Company has continuing obligations as of the date hereof) with any current or former effect; (x) executive officer of the Company, (y) member of the Board of Directors, or (z) that provides for payments to be made by Company employee providing for an annual base salary in excess of $200,000;
(iii) any contract providing for indemnification or any guaranty of its Subsidiaries upon a change in control thereof; (xi) that is a consulting agreement or data processing, software programming or licensing contract involving the payment of more than $200,000 per annum (other than any such contracts which are terminable by Company or any of its Subsidiaries on 60 days or less notice without any required payment or other conditions, other than the Companycondition of notice); (xii) that grants to a person any right in Company Owned Intellectual Property or grants to Company or any of its Subsidiaries a license to Company Licensed Intellectual Property (excluding licenses to shrink-wrap or click-wrap software), in each case that involves the payment or more than $200,000 per annum or is material to the conduct of the businesses of the Company; (xiii) to which any affiliate, other than officer, director, employee or consultant of such party or any contract providing for indemnification of customers its Subsidiaries is a party or other Persons pursuant beneficiary (except with respect to contracts loans to, or deposit or asset management accounts of, directors, officers and employees entered into in the ordinary course of business;
business and in accordance with all applicable regulatory requirements with respect to it); or (ivxiv) that is otherwise material to the Company or any contract that purports to limit in any material respect the right Subsidiary of the Company (x) or their financial condition or results of operations. Company has Previously Disclosed or made available to engage in any line of business, or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating Purchaser prior to the disposition or acquisitiondate hereof true, directly or indirectly (by merger or otherwise), by the Company correct and complete copies of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IPMaterial Contract.
(b) (i) All of the Each Material Contracts are Contract is a valid and legally binding on the agreement of Company or one of its Subsidiaries, as applicable, and, to the Knowledge of Company, the counterparty or counterparties thereto, is enforceable against it in accordance with its terms, terms (subject to the Bankruptcy and are Equity Exception) and is in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the Company or any Subsidiary nor, and each of its Subsidiaries has duly performed all material obligations required to be performed by it prior to the knowledge of the Company, any third party is in violation of any provision of, or failed to perform any obligation required date hereof under the provisions of, any each Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the Company or nor any Subsidiary norof its Subsidiaries, and, to the knowledge Knowledge of the Company, any third partycounterparty or counterparties, is in breach, or has received written notice breach of material breach, any provision of any Material Contract, except as disclosed in Schedule 3.13and (iv) no event or condition exists that constitutes, after notice or lapse of time or both, will constitute, a breach, violation or default on the part of Company or any of its Subsidiaries under any such Material Contract or provide any party thereto with the right to terminate such Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (West Coast Bancorp /New/Or/), Merger Agreement (Columbia Banking System Inc)
Material Contracts. (a) For purposes of Except for this Agreement, “Material Contract” shall mean the following agreements filed as exhibits to which the Company SEC Documents or as set forth in Section 3.18 of the Company Disclosure Schedules, neither the Company nor any Subsidiary of its Subsidiaries is a party to or expressly bound by any of their assets are boundContract (excluding any Company Benefit Plan (other than with respect to clause (xiv) and (xv) below) or Lease) that:
(i) any would constitute a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act), whether or not filed by ) with respect to the Company with the Commissionand its Subsidiaries, taken as a whole;
(ii) contains restrictions on the right of the Company or any employment of its Subsidiaries to engage in activities competitive with any Person or consulting contract to solicit suppliers anywhere in the world, other than restrictions that are not material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provides for the formation, creation, operation, management or control of any joint venture or partnership with a third party;
(iv) is an indenture, credit agreement, loan agreement, note, or other Contract providing for indebtedness for borrowed money of the Company or any of its Subsidiaries (other than indebtedness among the Company and/or any of its Subsidiaries) in each case excess of $10 million;
(v) is a settlement, conciliation or similar Contract that would require the Company or any of its Subsidiaries to pay consideration of more than $5 million after the date of this Agreement or that contains restrictions on the business and operations of the Company and its Subsidiaries that are material to the business of the Company and its Subsidiaries, taken as a whole;
(vi) (A) provides for the acquisition or disposition by the Company or any of its Subsidiaries of any business (whether by merger, sale of stock, sale of assets or otherwise) with respect a value in excess of $50 million or (B) pursuant to which the Company or any of its Subsidiaries acquired or will acquire any material ownership interest in any other Person or other business enterprise other than any Subsidiary of the Company, in each case, under which the Company or any of its Subsidiaries has continuing obligations remaining to be performed as of the date hereof;
(vii) with obligates the Company or any current or former (x) executive officer Subsidiary of the Company, (y) member Company to make any future capital investment or capital expenditure outside the ordinary course of the Board of Directors, or (z) Company employee providing for an annual base salary business and in excess of $200,0005 million;
(iiiviii) any contract providing for indemnification prohibits the payment of dividends or distributions in respect of the capital stock of the Company or any guaranty of its Subsidiaries or prohibits the pledging of the capital stock of the Company or any Subsidiary of the Company;
(ix) has resulted in payments by the Company or any of its Subsidiaries of more than $5 million in the aggregate for the prior fiscal year (other than Contracts subject to clause (v) above);
(x) has resulted in payments to the Company or any of its Subsidiaries of more than $10 million in the aggregate for the prior fiscal year;
(xi) is a Collective Bargaining Agreement or similar agreement to which the Company or any of its Subsidiaries is a party or to which the Company or any of its Subsidiaries is bound;
(xii) is with (A) each of the ten (10) largest customers of the Company and its Subsidiaries, taken as a whole (the “Material Customers”) and (B) each of the ten (10) largest commercial vendors of the Company and its Subsidiaries, taken as a whole (the “Material Vendors”), in each case by dollar amount for the fiscal year ending December 31, 2021;
(xiii) provides for (A) indemnification of any officer, director or employee by the Company, other than Contracts entered into on substantially the same form as the Company’s standard forms previously made available to Parent or (B) accelerated vesting in each case connection with a change of control (including as a result of any termination of employment following a change of control);
(xiv) is a Contract that is for the employment or engagement of any directors, officers, employees or independent contractors of the Company or any of its Subsidiaries at annual base cash compensation in excess of $400,000;
(xv) (A) is between the Company or any of its Subsidiaries, on the one hand, and any director or officer of the Company or any of its Subsidiaries or any Person beneficially owning five percent or more of the outstanding shares of the Company Common Stock, on the other hand, except for any Company Benefit Plan or (B) that would be required to be disclosed under Item 404 under Regulation S-K under the Securities Act; or
(xvi) (A) under which the Company or any of its Subsidiaries has granted or received an exclusive license to any Intellectual Property, (B) otherwise materially restricting the Company or any of its Subsidiaries’ ability to use, enforce, or disclose any Company Intellectual Property, (C) under which the Company or any of its Subsidiaries has the right to use any Intellectual Property licensed from a third Person that is material to the Companybusiness of the Company and its Subsidiaries, taken as a whole, (D) under which the Company or any of its Subsidiaries has granted a right to any Company Intellectual Property, which grant is material to the business of the Company and its Subsidiaries, taken as a whole, or (E) under which the Company or any of its Subsidiaries has delivered, made available, licensed, or placed into escrow any source code owned by any of them that is material to the business of the Company and its Subsidiaries, taken as a whole, other than any contract providing for indemnification than, with respect to each of customers or other Persons pursuant to contracts (A) through (E), (1) non-disclosure agreements entered into in the ordinary course of business;
, (iv2) any contract that purports nonexclusive, “off-the-shelf” software licenses granted by third parties to limit in any material respect the right of the Company or any of its Subsidiaries, (x3) to engage in any line of businessOpen Source Licenses, or (y4) to compete maintenance and support and professional services Contracts with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IP.
(b) (i) All of the Material Contracts are valid and binding on the Company or its Subsidiaries, enforceable against it (5) non-exclusive licenses to customers, resellers, or distributors in accordance the ordinary course of business and (6) agreements with its termsemployees and contractors in the ordinary course of business. Each Contract of the type described in clauses (i) – (xvi) of this Section 3.18(a) is referred to herein as a “Company Material Contract.”
(b) True and correct copies of each Company Material Contract have been publicly filed prior to the date of this Agreement or otherwise made available to Parent. Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract where such breach or default would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. To the Knowledge of the Company, as of the date of this Agreement, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, as of the date of this Agreement, each Company Material Contract is a valid and binding obligation of the Company or the Subsidiary of the Company that is party thereto and, to the Knowledge of the Company, of each other party thereto, and are is in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, the Enforceability Exceptions.
(iic) neither To the Company or any Subsidiary nor, to the knowledge Knowledge of the Company, any third party is in violation since the date of any provision ofthe Audited Company Balance Sheet, or failed to perform any obligation required under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the Company or has not received any Subsidiary norwritten or, to the knowledge Knowledge of the Company, any third party, is in breach, oral notice from or has received written notice of material breach, on behalf of any Material ContractCustomer indicating that such Material Customer intends to terminate or not renew, except as disclosed in Schedule 3.13any Company Material Contract with such Material Customer.
(d) To the Knowledge of the Company, since the date of the Audited Company Balance Sheet, the Company has not received any written or, to the Knowledge of the Company, oral notice from or on behalf of any Material Vendor indicating that such Material Vendor intends to terminate, or not renew, any Company Material Contract with such Material Vendor.
Appears in 2 contracts
Sources: Merger Agreement (Sailpoint Technologies Holdings, Inc.), Merger Agreement (Sailpoint Technologies Holdings, Inc.)
Material Contracts. (a) For purposes Section 3.17(a) of this Agreementthe Company Disclosure Schedule sets forth a true and complete list, “Material Contract” shall mean as of the date hereof, of each of the following Contracts (other than any Company Benefit Plans) to which the Company or any Subsidiary of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or any of their assets or businesses are boundbound (and any material amendments, supplements and modifications thereto), and the Company has made available to Parent true and complete copies of:
(i) any each Contract that would be required to be filed by the Company as a “material contract” (as such term is defined in pursuant to Item 601(b)(10) of Regulation S-K of under the Securities Act), whether or Act that has not been filed by the as an exhibit to a Company with the CommissionSEC Document;
(ii) Contracts with (A) any employment or consulting contract (in each case with respect to which the Company has continuing obligations as of the date hereofMaterial Vendors and (B) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000Material Customers;
(iii) any contract providing for indemnification other than with respect to an entity that is wholly owned by the Company or any guaranty by of its Subsidiaries, Contracts concerning the Companyestablishment or operation of a partnership, joint venture or limited liability company in which the Company or any of its Subsidiaries holds an equity interest (including with respect to each case Minority Investment), or that is material to the Company and its Subsidiaries, taken as a whole;
(iv) (A) (x) licenses or sublicenses (or other Contracts in which the Company or any of its Subsidiaries grants or is granted a similar right to use) of Intellectual Property from or to any third party (other than (1) licenses or sublicenses of generally commercially available off-the-shelf software programs with annual license fees or a total replacement cost of less than $250,000, (2) non-exclusive licenses or sublicenses to customers in the ordinary course of business consistent with past practice, or (3) non-exclusive licenses or sublicenses ancillary to commercial agreements entered into in the ordinary course of business consistent with past practice) or (y) a Contract that, since April 27, 2024, provided or provides for the assignment of Intellectual Property to or from any third party (except for inventor assignments), in the case of each of clauses (x) and (y), except for such assignments, licenses and sublicenses that are not material to the Company and the Company Subsidiaries, taken as a whole, or (B) a Contract that subjects Company Owned Intellectual Property to any material restriction;
(v) any Contract with an employee or independent contractor of the Company or any of its Subsidiaries that provides for annual base compensation in excess of $350,000;
(vi) any Labor Agreement;
(vii) Contracts containing (A) a covenant materially restricting the ability of the Company 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; (B) a provision granting the other party “most favored nation” status or equivalent preferential pricing terms; (C) a provision providing for an exclusive license, supply, distribution or other right in connection with any product or technology purchased or supplied by the Company; or (D) a right of first or last offer or refusal to any third party, except in the case of each of clauses (B) and (D) for such restrictions, requirements and provisions that are not material, individually or in the aggregate, to the Company and its Subsidiaries, taken as a whole;
(viii) indentures, credit agreements, loan agreements and similar instruments pursuant to which the Company or any of its Subsidiaries has or will incur or assume any indebtedness or has or will guarantee or otherwise become liable for any indebtedness of any other Person for borrowed money in excess of $5,000,000 other than any contract providing for indemnification indentures, credit agreements, loan agreements or similar instruments between or among any of customers the Company and any of its Subsidiaries;
(ix) settlement, conciliation or similar Contracts, including any such agreement with any Governmental Entity, that would require the Company or any of its Subsidiaries to pay, after taking into account amounts paid or payable by insurance, consideration of more than $1,000,000 individually or $2,000,000 in the aggregate after the date hereof or that contains material continuing restrictions on the business or operations of or other Persons pursuant non-monetary obligations of the Company or its Subsidiaries;
(x) Contracts that obligate the Company or any of its Subsidiaries to contracts entered into make any future capital investment or capital expenditure in excess of $1,000,000 (individually or in the aggregate) other than in respect of purchases of products from suppliers that are to be sold to customers in the ordinary course of business;
(ivxi) any contract Contracts (A) that purports to limit in any material respect provide for the right of the Company (x) to engage in any line of business, acquisition or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company or any of its Subsidiaries of any business or material assets (whether by merger, sale of stock, sale of assets with a fair market value or otherwise) under which the Company or any of its Subsidiaries has any material continuing obligations (monetary or otherwise) or would reasonably be expected to have liabilities in excess of $250,000;1,000,000 after the date hereof or (B) pursuant to which the Company or any of its Subsidiaries acquired or will acquire any material ownership interest in any other Person or other business enterprise other than any Subsidiary, in each case, under which the Company or any of its Subsidiaries has obligations remaining to be performed as of the date hereof; or
(vixii) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third partyshareholders, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnershipinvestors rights, registration rights, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IParrangements.
(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) All all Contracts set forth or required to be set forth in Section 3.17(a) of the Material Contracts are valid and binding on Company Disclosure Schedule or filed or required to be filed as exhibits to the Company SEC Documents (except to the extent subsequently terminated or its Subsidiariessuperseded) (the “Company Material Contracts”) are valid, enforceable against it in accordance with its terms, binding and are in full force and effecteffect and are enforceable by the Company or the applicable Subsidiary in accordance with their terms, subject to laws except as limited by Laws affecting the enforcement of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules generally, by general equitable principles or by the discretion of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policyany Governmental Entity before which any Proceeding seeking enforcement may be brought, (ii) neither the Company, or the applicable Subsidiary, has performed all obligations required to be performed by it under the Company Material Contracts, and it is not (with or any Subsidiary norwithout notice or lapse of time, or both) in breach or default thereunder and, to the knowledge Knowledge of the Company, no other party to any third party Company Material Contract is in violation (with or without notice or lapse of any provision oftime, or failed to perform any obligation required under the provisions of, any Material Contract, except as disclosed both) in Schedule 3.13 breach or default thereunder and (iii) since April 25, 2021, neither the Company or nor any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or its Subsidiaries has received written notice of any actual, alleged, possible or potential material breachviolation of, or material failure to comply with, any term or requirement of any Company Material Contract, except as disclosed in Schedule 3.13.
Appears in 2 contracts
Sources: Merger Agreement (Patterson Companies, Inc.), Merger Agreement (Patterson Companies, Inc.)
Material Contracts. (a) For purposes Section 4.15 of this Agreement, “Material Contract” shall mean the Company Disclosure Schedule sets forth all of the following Contracts to which the Company Company, the Purchased Companies or any Subsidiary of their Subsidiaries is a party or by which it is bound under which there are continuing obligations (other than confidentiality restrictions) and other than the Company Plans and Contracts made after the date hereof as permitted by or in compliance with Section 6.2 (collectively, the “Material Contracts”): (i) Contracts with any current officer or director of the Company, the Purchased Companies or any of their Subsidiaries; (ii) Contracts with any labor union or association representing any employee of the Company, the Purchased Companies or any of their Subsidiaries; (iii) Contracts pursuant to which any party is required to purchase or sell a stated portion of its requirements or output from or to another party; (iv) Contracts for the sale of any of the assets are bound:
of the Company, the Purchased Companies or any of their Subsidiaries other than in the Ordinary Course of Business or for the grant to any person of any preferential rights to purchase any of its assets; (iv) joint venture agreements; (vi) Contracts containing covenants of the Company, the Purchased Companies or any of their Subsidiaries not to compete in any line of business or with any person in any geographical area or covenants of any other person not to compete with the Company, the Purchased Companies or any of their Subsidiaries in any line of business or in any geographical area; (vii) Contracts relating to the acquisition by the Company, the Purchased Companies or any of their Subsidiaries of any operating business or the capital stock of any other person; (viii) Contracts relating to the borrowing of money; (ix) any “material contract” distributor, supplier (as such term is defined used in Item 601(b)(10) of Regulation S-K of the Securities ActCompany SEC Documents), whether advertising, agency or not filed by the Company with the Commission;
manufacturer’s representative Contract; (iix) agreement of guarantee, support, assumption or endorsement of, or any employment or consulting contract (in each case similar commitment with respect to which the Company has continuing obligations as Liability or Indebtedness of the date hereofany other Person; (xi) with any current or former (x) executive officer of the Companytrust indenture, (y) member of the Board of Directorsmortgage, promissory note, loan agreement or (zxii) Company employee providing for an annual base salary in excess of $200,000;
(iii) any contract providing for indemnification or any guaranty other Contracts, other than Real Property Leases, which involve the expenditure by the Company, the Purchased Companies or any of their Subsidiaries of more than $150,000 in each case that is the aggregate or $25,000 annually or require performance by any party more than one year from the date hereof or are otherwise material to the Company, other than the Purchased Companies and any contract providing for indemnification of customers their Subsidiaries taken as a whole. The Company, the Purchased Companies and their Subsidiaries have provided or other Persons pursuant to contracts entered into in the ordinary course of business;
(iv) any contract that purports to limit in any material respect the right of the Company (x) to engage in any line of business, or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating made available to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase Purchaser true and complete copies of all of the Company’s requirements for a given product or service from a given third party, which product or service is written Material Contracts and written summaries of the material to terms of all of the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IP.
(b) (i) oral Material Contracts. All of the Material Contracts are valid and binding on the Company or its Subsidiaries, enforceable against it in accordance with its terms, and other agreements are in full force and effecteffect and are the legal, valid and binding obligation of the Company, the Purchased Companies and/or any of their Subsidiaries, enforceable against them in accordance with their terms, subject to laws of general application relating to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights and remedies generally and rules subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law governing specific performanceor in equity). None of the Company, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the Company Purchased Companies or any Subsidiary of their Subsidiaries is in default in any material respect under any Material Contract, nor, to the knowledge Knowledge of the Company, the Purchased Companies or any third of their Subsidiaries, is any other party is in violation of any provision of, or failed to perform any obligation required under the provisions of, any Material Contract, except as disclosed Contract in Schedule 3.13 and (iii) neither the Company or default thereunder in any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or has received written notice of material breach, of any Material Contract, except as disclosed in Schedule 3.13respect.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement (Applied Materials Inc /De), Stock and Asset Purchase Agreement (Segal Edward D)
Material Contracts. (a) For purposes Except for this Agreement, Section 4.17(a) of the Company Disclosure Letter sets forth a true and complete list, as of the date of this Agreement, “Material Contract” shall mean and the following Acquired Companies have made available to which the Company or any Subsidiary is a party or any of their assets are boundParent true and complete copies, of:
(i) each Contract to which any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K member of the Securities Act)Acquired Company Group is a party that (A) restricts the ability of any member of the Acquired Company Group to compete in any business or with any Person in any geographical area, whether (B) requires any member of the Acquired Company Group to conduct any business on a “most favored nations” basis with any third party or not filed by the Company with the Commission(C) provides for “exclusivity” or any similar requirement in favor of any third party;
(ii) each Contract under which any employment or consulting contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board Acquired Company Group licenses Intellectual Property from or to any third party (other than (A) generally commercially available, off-the-shelf software programs and (B) non-exclusive licenses in the ordinary course of Directorsbusiness), or (z) except for such licenses and sublicenses that are not material to the Acquired Company employee providing for an annual base salary in excess of $200,000Group, taken as a whole;
(iii) any contract providing for indemnification Contract pursuant to which any member of the Acquired Company Group will acquire any material ownership interest in any other Person or other business enterprise other than any guaranty by the CompanyAcquired Company Subsidiary, in each case that is material to case, with a value greater than $1,000,000 after the Company, other than any contract providing for indemnification date of customers or other Persons pursuant to contracts entered into in the ordinary course of businessthis Agreement;
(iv) each Contract that constitutes a commitment relating to indebtedness for borrowed money or the deferred purchase price of property by any contract that purports to limit in any material respect the right member of the Acquired Company Group (xwhether incurred, assumed, guaranteed or secured by any asset) to engage in any line excess of business$1,000,000, other than agreements solely between or (y) to compete with any Person or operate in any geographical locationamong the members of the Acquired Company Group;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with each Contract for a fair market value in excess of $250,000Derivative Transaction;
(vi) each Contract (including any contract that contains Company Real Property Lease) to which any provision that requires the purchase of all member of the Company’s requirements Acquired Company Group is a party that provides for a given product annual payments, receipts or service from a given third party, which product or service is material to the Companyexpenditures in excess of $1,000,000;
(vii) any contract Contract that obligates the Company to conduct business on an exclusive is a settlement, conciliation or preferential basis similar agreement with any third partyGovernmental Entity or pursuant to which any member of the Acquired Company Group will, in either case, have any material obligations after the date of this Agreement;
(viii) each (A) Labor Agreement respecting Business Employees; and (B) Contract with a Management Company providing for the engagement of Business Employees by any partnership, joint venture or similar contract member of the Acquired Company Group that is material would reasonably be expected to result in annual payments by the Companymembers of the Acquired Company Group in excess of $1,000,000;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements Contract that (A) contains “earn out” or other contractscontingent payment obligations, (B) guarantees any obligations of another Person or (C) contains indemnity or similar obligations, in each case relating case, that would reasonably be expected to indebtedness for borrowed money, whether as borrower result in annual payments by or lender, in each case to any member of the Acquired Company Group in excess of $250,000, other than accounts receivables and payables1,000,000;
(x) any employee collective bargaining agreement all Contracts relating to the pending acquisition, swap, exchange, sale or other contract with disposition of (or option to purchase, acquire, swap, exchange, sell or dispose of) any labor unionof the assets or properties of any member of the Acquired Company Group (including any Oil and Gas Properties but excluding purchases and sales of Hydrocarbons), taken as a whole, for which the aggregate consideration (or the fair market value of such consideration, if non-cash) exceeds $1,000,000;
(xi) each joint development agreement, exploration agreement, participation, farmout, farm-in or program agreement or similar Contract (excluding joint operating agreements) that would reasonably be expected to require any other contract under which member of the Acquired Company is obligated Group to make payment or incur costs expenditures in excess of $250,000 1,000,000 in any one calendar year and which is not otherwise described in clauses (i)–(x) aboveperiod;
(xii) any contract which is not Contract that contains a “take-or-pay” clause or any similar prepayment obligation, minimum volume commitment, capacity reservation fees or forward sale arrangement or obligation that otherwise described in clauses (i)-(xi) above that is material to guarantee or commit volumes of Hydrocarbons from any member of the CompanyAcquired Company Group’s Oil and Gas Properties at some future time without then or thereafter receiving full payment therefor; orand
(xiii) any contract relating Contract providing for the purchase or sale by any Acquired Company or any Acquired Company Subsidiaries of Hydrocarbons, or related to material Hydrocarbons or produced water or freshwater or Contracts for gathering, processing, transportation, treating, storage, blending or similar midstream services (each, a “Company IPMarketing Contract”) that (A) has a remaining term of greater than 90 days and does not allow any member of the Acquired Company Group to terminate it without penalty to any member of the Acquired Company Group within 90 days, (B) which would reasonably be expected to involve volumes in excess of 500 barrels of liquid Hydrocarbons per day or 1,500 MMcf of gas per day (in each case, calculated on a yearly average basis) or (C) that contains acreage dedications of more than 1,000 acres. Each such Contract described in clauses (i) through (xiii) above is referred to herein as a “Company Specified Contract.”
(b) (i) All As of the Material date of this Agreement, each of the Company Specified Contracts are valid is valid, binding and binding enforceable on the applicable member of the Acquired Company or its SubsidiariesGroup, enforceable against it in accordance with its termsas the case may be, and, to the Knowledge of the Acquired Company Group, each other party thereto, and are is in full force and effecteffect except (i) for such failures to be valid, subject binding or enforceable or to laws be in full force and effect as would not reasonably be expected, individually or in the aggregate, to be material to the Acquired Company Group, taken as a whole, or that would impair, hinder, or delay any member of general application relating the Acquired Company Group’s ability to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium perform its obligations under this Agreement and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither insofar as such enforceability may be limited by Creditors’ Rights. As of the Company or any Subsidiary nordate of this Agreement, to the knowledge Knowledge of the CompanyAcquired Company Group, there is no default under any third Company Specified Contract by any member of the Acquired Company Group or any other party is thereto, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by any member of the Acquired Company Group or any other party thereto, in violation of any provision ofeach case except as would not reasonably be expected, individually or in the aggregate, to be material to the Acquired Company Group, taken as a whole, or failed that would impair, hinder, or delay any member of the Acquired Company Group’s ability to perform any obligation required its obligations under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the Company or any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or has received written notice of material breach, of any Material Contract, except as disclosed in Schedule 3.13this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Pedevco Corp), Merger Agreement (Amplify Energy Corp.)
Material Contracts. (a) For purposes Except as set forth on Schedule 3.12(a) and except as would constitute an Excluded Asset or Excluded Liability, as of this Agreementthe date hereof, “Material Contract” shall mean the following to which the Company or neither Seller nor any Subsidiary of either Seller is a party to, nor is either Seller, any Subsidiary of a Seller or any of their respective assets are bound:bound by, any Contract (each, a "Material Contract"):
(i) any “material contract” relating to (A) the employment (as an employee or consultant) or termination of employment of any Person by each Seller or any Subsidiary of either Seller which may not be terminated without penalty or other obligation (other than any severance payments required by law) by such term Seller or, as the case may be, such Subsidiary within twelve (12) months from the date hereof, or (B) the payment to any Person by each Seller or any Subsidiary of either Seller of any bonus award which is defined in Item 601(b)(10) contingent on a sale of Regulation S-K such Seller, any Subsidiary of the Securities Act), whether such Seller or not filed by the Company with the Commissionany of their respective assets;
(ii) any employment or consulting contract (in each case which contains material restrictions with respect to which the Company has continuing obligations as payment of the date hereof) with dividends or any current or former (x) executive officer other distribution in respect of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000its capital stock;
(iii) any contract providing for indemnification relating to Indebtedness of each Seller or any guaranty by of its Subsidiaries;
(iv) materially limiting the Companyability of either Seller or any Subsidiary of a Seller to manufacture, sell or distribute any product, to engage in each case that any line of business or to compete with any Person;
(v) with any labor union or any employee organization;
(vi) pursuant to which either Seller or any Subsidiary of a Seller is material entitled or obligated to the Company, acquire any assets with a value in excess of $250,000 from a third party other than any contract providing for indemnification the purchase of customers or other Persons pursuant to contracts entered into inventory in the ordinary course of business;
(vii) in the form of a performance, payment, and other bonds issued by a Seller that are guaranteed by any Affiliate of such Seller (the "Bonds"); or
(viii) pursuant to which either Seller or any its Subsidiary of a Seller is obligated to provide goods or services to another Person with a total Contract value in excess of $2,000,000.
(b) Except as set forth in Schedule 3.12(b) and except as otherwise would not reasonably be expected to have a Material Adverse Effect on the Business:
(i) there is no default under any Material Contract either by a Seller or any Subsidiary of a Seller or, to the Knowledge of the Sellers, by any other party thereto, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by a Seller or any Subsidiary of a Seller or, to the Knowledge of the Sellers, any other party;
(ii) no party to any Material Contract has given written notice to a Seller or any Subsidiary of a Seller of or made a claim in writing against a Seller or any Subsidiary or a Seller with respect to any breach or default thereunder;
(iii) to the Knowledge of the Sellers, no party to any Material Contract intends to cancel, withdraw, modify or amend any such Material Contract;
(iv) with respect to each Material Contract or Bid, (A) each Seller or its Subsidiaries has complied in all material respects with all material terms and conditions of such Material Contract or Bid, including all clauses, provisions and requirements incorporated expressly, by reference or by operation of law therein; (B) each Seller or its Subsidiaries has complied in all material respects with all requirements of any contract statute, rule, regulation or order pertaining to such Material Contract or Bid; (C) all representations and certifications executed, acknowledged or set forth in or pertaining to such Material Contract or Bid were current, accurate and complete in all material respects as of their effective date, and each Seller or its Subsidiaries has complied in all material respects with all such representations and certifications, including, without limitation, those required by or relating to the Foreign Corrupt Practices Act, the Cost Accounting Standards, and the regulations and rules relating to the submission of progress payment requests; (D) no Governmental Authority nor any prime contractor, subcontractor or other Person has notified either Seller or their Subsidiaries in writing that purports either Seller or its Subsidiaries has breached or violated any statute, rule, regulation, certification, representation, clause, provision or requirement; (E) no termination for convenience, termination for default, cure notice or show cause notice has been issued (other than to limit the extent satisfied, cured or withdrawn); (F) no cost incurred by either Seller or its Subsidiaries has been disallowed in respect of any material respect the right such Material Contract (in each case, other than costs not exceeding one percent (1%) of the Company value of the respective Material Contract); and (xG) no money due to engage either Seller or its Subsidiaries has been withheld, reduced or set-off in respect of any line such Material Contract (in each case, other than monies not exceeding one percent (1%) of business, or (y) to compete with any Person or operate in any geographical locationthe value of the respective Material Contract);
(v) there exist (A) no financing arrangements with respect to the performance of any contract Client Contract; (B) to the Knowledge of the Sellers, no material outstanding claims or requests for equitable or financial adjustments against the Sellers or their Subsidiaries, either by any party to a Material Contract, any Governmental Authority or by any prime contractor, subcontractor, vendor or other third party, arising under or relating to any Material Contract or Bid; (C) to the disposition or acquisitionKnowledge of the Sellers, directly or indirectly (by merger or otherwise), no facts that are known by the Company Sellers upon which such a claim may be validly based in the future; and (D) to the Knowledge of assets with the Sellers, no material disputes between either Seller or its Subsidiaries and any party to a fair market value in excess of $250,000;Material Contract, any Governmental Authority or any prime contractor, subcontractor or vendor arising under or relating to any Client Contract; and
(vi) any contract that contains any provision that requires the purchase of all revenues and profits associated with each of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IP.
(b) (i) All of the Material Client Contracts are valid and binding on the Company or its Subsidiaries, enforceable against it have been recorded in accordance with its termsGAAP, and are in full force there exists no uncompleted Client Contract as to which the Company's estimated cost at completion (including material and effectlabor costs, subject to laws of general application relating to bankruptcyother direct costs, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remediesoverheads, and engineering costs whether incurred or yet to limitations of public policy, (iibe incurred) neither the Company or any Subsidiary nor, to the knowledge as of the Company, any third party is in violation of any provision of, Balance Sheet Date exceeds the aggregate contract revenue recorded or failed to perform any obligation required be recorded under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the Company or any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or has received written notice of material breach, of any Material Contract, except as disclosed in Schedule 3.13such Client Contract through completion.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Tetra Tech Inc), Asset Purchase Agreement (Foster Wheeler LTD)
Material Contracts. (a) For purposes Schedule 3.14 sets forth all of this Agreement, “Material Contract” shall mean the following contracts, agreements, commitments ("Contracts") to which the Company or any Subsidiary of its Subsidiaries is a party or any of their assets are bound:
by which it is bound (collectively, the "Material Contracts"): (i) Contracts with any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K current officer or director of the Securities Act), whether Company or not filed by the Company with the Commission;
any of its Subsidiaries; (ii) Contracts with any employment labor union or consulting contract (in each case with respect to which association representing any employee of the Company has continuing obligations as or any of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000;
its Subsidiaries; (iii) Contracts pursuant to which any contract providing party is required to purchase or sell a stated portion of its requirements or output from or to another party; (iv) Contracts for indemnification the sale of any of the assets of the Company or any guaranty by the Company, in each case that is material to the Company, of its Subsidiaries other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course of business;
business or for the grant to any person of any preferential rights to purchase any of its assets; (ivv) any contract that purports to limit in any joint venture agreements; (vi) material respect the right Contracts containing covenants of the Company (x) or any of its Subsidiaries not to engage compete in any line of business, business or (y) with any person in any geographical area or covenants of any other person not to compete with the Company or any Person of its Subsidiaries in any line of business or operate in any geographical location;
area; (vvii) any contract Contracts relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), acquisition by the Company or any of assets with a fair market value in excess its Subsidiaries of $250,000;
any operating business or the capital stock of any other person; (viviii) Contracts relating to the borrowing of money; or (ix) any contract that contains other Contracts, other than Real Property Leases, which involve the expenditure of more than $50,000 in the aggregate or $25,000 annually or require performance by any provision that requires party more than one year from the purchase date hereof. There have been made available to the Purchaser, its affiliates and their representatives true and complete copies of all of the Company’s requirements for a given product or service from a given third partyMaterial Contracts. Except as set forth on Schedule 3.14, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IP.
(b) (i) All all of the Material Contracts and other agreements are in full force and effect and are the legal, valid and binding on obligation of the Company or and/or its Subsidiaries, enforceable against it them in accordance with its terms, and are in full force and effect, subject to laws of general application relating to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ ' rights and remedies generally and rules subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law governing specific performanceor in equity). Except as set forth on Schedule 3.14, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the Company or nor any Subsidiary is in default in any material respect under any Material Contracts, nor, to the knowledge of the Company, is any third other party is in violation of any provision of, or failed to perform any obligation required under the provisions of, any Material Contract, except as disclosed Contract in Schedule 3.13 and (iii) neither the Company or default thereunder in any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or has received written notice of material breach, of any Material Contract, except as disclosed in Schedule 3.13respect.
Appears in 2 contracts
Sources: Agreement and Plan of Amalgamation (Thomas Equipment, Inc.), Amalgamation Agreement (Maxim Mortgage Corp/)
Material Contracts. (a) For purposes As of the date of this Agreement, “Material Contract” shall mean the following none of Parent, any of its subsidiaries or their respective properties or other assets is a party to or bound by any Contract (other than Parent Plans):
(i) pursuant to which the Parent, any of its subsidiaries or any other party thereto has material continuing obligations, rights or interests and including annual payments by the Parent and its subsidiaries of $100,000 or more relating to the research, development, clinical trial, distribution, supply, manufacture, marketing or co-promotion of, or collaboration with respect to, any product candidate for which the Parent or any of its subsidiaries is currently engaged in research or development, including but not limited to: (A) material manufacture or supply services or material Contracts with contract research organizations for clinical trials-related services; (B) material transfer Contracts for pre-clinical products or clinical products of the Company or any Subsidiary is a party of its subsidiaries with commercial, pharmaceutical or biotechnology companies; (C) Contracts involving the payment of royalties or other amounts calculated based upon the revenues or income of the Parent or any of their assets are bound:its subsidiaries or income or revenues related to any clinical product candidate of the Parent or any of its subsidiaries; and (D) Contracts pursuant to which the Parent has minimum purchase or “most favored nation” obligations;
(iii) that contains any non-compete or exclusivity provision or limits or purports to limit, curtail or restrict the ability of the Parent or any of its subsidiaries (or which following the consummation of the Merger and the other transactions contemplated hereby would reasonably be expected to limit the ability of the Surviving Corporation) in a manner that is material to the business of the Parent and its subsidiaries, taken as a whole, as currently conducted (A) to compete in any line of business, in any geographic area or with any Person and (B) to sell to or purchase from any other Person;
(iii) that requires or permits Parent, or any successor to, or acquirer of, the Parent, to make any payment to another Person, or requires the consent of another Person, in each case in connection with a change of control of Parent or gives another Person a right to receive or elect to receive a change of control payment;
(iv) that is a joint-venture or partnership agreement or other similar agreement or arrangement;
(v) that (A) relates to the disposition or acquisition by Parent or its subsidiaries of a material amount of assets or equity interests in any Person (1) after the date of this Agreement, other than the sale of inventory in the ordinary course of business consistent with past practice, or (2) which contains any ongoing obligations (including sale of inventory, indemnification, purchase price adjustment, “earn-out” or other contingent obligations) that are still in effect that are reasonably likely to result in claims in excess of $50,000 or (B) pursuant to which Parent or its subsidiaries will acquire or dispose of any material ownership interest in any other person or other business enterprise other than the Parent’s subsidiaries;
(vi) that is a loan or credit agreement, indenture, note or other Contract or instrument relating to or evidencing Indebtedness for borrowed money (including any guarantee thereto) or any Contract pursuant to which Indebtedness for borrowed money may be incurred or guaranteed, including any Contract that is a financial derivatives master agreement or confirmation, or futures account opening agreement and/or brokerage statement, evidencing financial hedging or similar trading activities;
(vii) that is a mortgage, pledge, security agreement, deed of trust, capital lease or similar agreement that creates or grants a Lien on any material property or asset of the Parent or any of its subsidiaries, in each case involving annual payments of more than $100,000;
(viii) that is a Collective Bargaining Agreement;
(ix) that is a Contract providing for the issuance or sale of any equity securities of the Company or any of its subsidiaries;
(x) That is a settlement agreement, or agreement entered into in connection with a settlement agreement, corporate integrity agreement, consent decree, deferred prosecution agreement, or other similar type of agreement with any Governmental Authority or any other Person that has existing or contingent performance obligations;
(xi) that is a Contract granting a right of first refusal or first negotiation to any third party over any material assets of the Parent;
(xii) that is a Contract, including any ancillary or subagreements thereto, with any contract research organization or other agreement, including any ancillary or subagreements thereto, with a third party which is conducting one or more clinical studies on behalf of the Parent or its subsidiaries and is reasonably expected to require payment of more than $50,000 within twelve (12) months prior to or after the date of this Agreement;
(xiii) involves the use or license by the Parent or its subsidiaries of any material Software used by the Parent or its subsidiaries as presently conducted (other than non-customized Software subject to shrink-wrap, click-wrap and off-the-shelf or commercially available Software);
(xiv) is a Parent IP Agreement of the type set forth in Section 4.15(f) or Section 4.15(g) of the Parent Disclosure Letter or involves the joint development of products or technology with a third party that is material to Parent and its subsidiaries, taken as a whole; or
(xv) that is any Contract that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities ActSEC).
(xvi) All Contracts, arrangements, commitments or understandings described in this Section 4.12(a), whether or not filed by together with each Parent Real Property Lease, shall be collectively referred to as the Company with the Commission;“Parent Material Contracts.”
(iib) any employment or consulting contract (Except, in each case with respect case, as has not been and would not reasonably be expected to which be, individually or in the Company has continuing obligations aggregate, material to Parent and its subsidiaries, taken as a whole, as of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000;
(iii) any contract providing for indemnification or any guaranty by the Company, in each case that is material to the Company, other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course of business;
(iv) any contract that purports to limit in any material respect the right of the Company (x) to engage in any line of business, or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IP.
(b) (i) All each of the Parent Material Contracts are valid is valid, binding and binding on in full force and effect with respect to Parent and its subsidiaries party thereto and, to the Company or its SubsidiariesKnowledge of Parent, enforceable against it each other party thereto and enforceable, in all material respects, in accordance with its terms, terms by Parent and are in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, its subsidiaries party thereto; (ii) neither Parent and each of its subsidiaries has performed all material obligations required to be performed by them under the Company Parent Material Contracts to which they are parties; (iii) to the Knowledge of Parent, each other party to a Parent Material Contract has performed all material obligations required to be performed by it under such Parent Material Contract and (iv) no party to any Parent Material Contract has given Parent or any Subsidiary of its subsidiaries written notice of its intention to cancel, terminate, change the scope of rights under or fail to renew any Parent Material Contract and neither Parent nor any of its subsidiaries, nor, to the knowledge Knowledge of the CompanyParent, any third other party is in violation of to any provision of, or failed to perform any obligation required under the provisions of, any Parent Material Contract, except as disclosed has repudiated in Schedule 3.13 and (iii) neither the Company or writing any Subsidiary nor, to the material provision thereof. Neither Parent nor any of its subsidiaries has knowledge of the Company, any third party, is in breachof, or has received written notice of, any violation or default under any Parent Material Contract or any other Contract to which it is a party or by which it or any of its material breach, of any Material Contractproperties or assets is bound, except for violations or defaults that have not been and would not reasonably be expected to be, individually or in the aggregate, material to Parent and its subsidiaries, taken as disclosed in Schedule 3.13a whole. True, unredacted and complete copies of all of the Parent Material Contracts have been made available to the Company.
Appears in 2 contracts
Sources: Merger Agreement (Akari Therapeutics PLC), Merger Agreement (Peak Bio, Inc.)
Material Contracts. (a) For purposes Section 4.16 of this Agreementthe Disclosure Schedules lists as of the Execution Date, and the Company has made available to Buyer, true, correct and complete copies of each of the following Contracts (each, a “Material Contract” shall mean the following ”) to which the Company or any Subsidiary of its Subsidiaries is a party or any which bind or affect their respective properties or assets (excluding leases, subleases or other agreements for Leased Real Property, all of their assets which Contracts are bound:disclosed in Section 4.13(b) of the Disclosure Schedules, and excluding Benefit Plans):
(i) Excluding any “material contract” Contracts that represent intercompany or intracompany or intra-group loans, Contracts that relate to Indebtedness or conditional sale arrangements, the sale, securitization or servicing of loans or loan portfolios, in each case in excess of €100,000, including, without limitation, that grant or permit any Lien (as such term is defined in Item 601(b)(10other than a Permitted Lien) of Regulation S-K on any of the Securities Act), whether assets or not filed by properties of the Company with or any of its Subsidiaries, or any guarantees of Indebtedness by third parties for the Commissionbenefit of the Company or any of its Subsidiaries;
(ii) Contracts relating to the ownership, transfer or voting of any employment or consulting contract (equity interests in each case with respect to which the Company has continuing obligations as or any of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000its Subsidiaries;
(iii) any contract providing Contracts for indemnification the acquisition, sale or any guaranty by lease of the Company, in each case that is material to the Companyproperties or assets, other than any contract providing for indemnification of customers or other Persons pursuant to contracts Contracts entered into in the ordinary course of business;
(iv) Contracts that provide for or govern the formation, creation, operation, management or control of any contract that purports to limit in any material respect the right of the Company (x) to engage in any line of businessstrategic partnership, joint venture, joint development, or (y) to compete with any Person similar arrangement or operate in any geographical locationpartnership;
(v) Contracts with any contract relating customers, vendors, suppliers, distributors or contractors or for the purchase of products or services, other than product or service orders entered into in the ordinary course of business, and which do not individually provide for payments from or to the disposition Company or acquisition, directly or indirectly (by merger or otherwise), by the Company any of assets with a fair market value its Subsidiaries in excess of $250,000€100,000;
(vi) Contracts pursuant to which the Company or any contract that contains any provision that requires the purchase of all of the Company’s requirements for its Subsidiaries subcontracts services to a given product or service from a given third party, which product or service is material to other than in the Companyordinary course of business;
(vii) any contract Contracts containing provisions that obligates purport to limit the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Contemplated Transactions, could restrict the ability of Buyer or any of its Subsidiaries) to conduct compete in any business on an exclusive or preferential basis with any third partyPerson or in any geographic area, or to sell, supply or distribute any of the Company’s or any of its Subsidiary’s services or products (including any non-compete, exclusivity, “most-favored-nation” or similar requirements) or pursuant to which any benefit or right is required to be given or lost, or any penalty or detriment is incurred, as a result of so competing or engaging;
(viii) any partnership, joint venture or similar contract that is material to the Companyoperating and capital leases;
(ix) Contracts with any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payablesGovernmental Authority;
(x) Contracts pursuant to which the Company or any employee collective bargaining agreement of its Subsidiaries is granted by any other Person, or grants to any other Person, any license or other contract right to use, or a covenant not to s▇▇ with respect to, or assigns to any labor unionPerson, or is assigned by any Person, any Intellectual Property (other than shrink wrap agreements for off-the-shelf software with a replacement cost and/or annual license fees of less than €100,000);
(xi) any other contract under which Contracts providing for indemnification by the Company is obligated to make payment or incur costs any of its Subsidiaries other than customary indemnities in excess agreements with customers or suppliers incurred in the ordinary course of $250,000 in any year and which is not otherwise described in clauses (i)–(x) abovebusiness;
(xii) Contracts pursuant to which the Company or any contract which is not otherwise described in clauses (i)-(xi) above of its Subsidiaries is, or may become, obligated to incur any severance or compensation obligations that is material to would become payable by reason of this Agreement or the Company; orContemplated Transactions;
(xiii) Excluding any contract relating Contracts that represent intercompany or intracompany or intra-group loans, Contracts pursuant to material which the Company IPor any of its Subsidiaries has advanced or loaned an amount to any Person, other than accounts receivable extended in the ordinary course of business.
(xiv) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements), excluding any employment agreements that are cancellable without penalty or are cancellable with less than 90 days’ notice;
(b) (i) All of the Each Material Contracts are Contract is valid and binding on the Company or its Subsidiariesthe Subsidiary of the Company that is a party thereto and, to the Knowledge of the Company, each other party thereto, and is in full force and effect and enforceable against it in accordance with its terms, and are in full force and effect, except to the extent enforceability may be subject to laws of general application relating to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and or other similar laws Laws, now or hereafter in effect, relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remediesgenerally, and to limitations general equitable principles. The Company, its Subsidiaries and, to the Knowledge of public policythe Company, (ii) neither each other party thereto, have performed and complied with all material obligations required to be performed or complied with by them under each Material Contract. There is no default under any Material Contract by the Company or any Subsidiary norof its Subsidiaries or, to the knowledge Knowledge of the Company, by any third party is in violation other party, and no event has occurred that with the lapse of any provision of, time or failed to perform any obligation required under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither giving of notice or both would constitute a default thereunder by the Company or any Subsidiary norof its Subsidiaries, or, to the knowledge Knowledge of the Company, by any third party, is in breach, or has received written notice of material breach, of any Material Contract, except as disclosed in Schedule 3.13other party thereto.
Appears in 2 contracts
Sources: Share Exchange Agreement (GAN LTD), Share Exchange Agreement (GAN LTD)
Material Contracts. (a) For purposes Section 3.19(a) of this Agreementthe Company Disclosure Letter sets forth a true, “Material Contract” shall mean correct and complete list, as of the following date hereof, of each Contract (other than Plans), which is in effect as of the date hereof (or pursuant to which the Company or any Subsidiary is of its Subsidiaries have any continuing material obligations thereunder) and under which the Company or any of its Subsidiaries are a party or by which the Company or any of its Subsidiaries or any of their respective properties or assets are is bound, that:
(i) any is a “material contract” (as such term is defined in pursuant to Item 601(b)(10) of Regulation S-K of under the Securities Act), whether or not filed disclosed by the Company with the Commissionon a Current Report on Form 8-K;
(ii) involves, by its terms, aggregate payments by the Company or any of its Subsidiaries or aggregate payments payable to the Company or any of its Subsidiaries under such Contract (or any group of substantially related existing Contracts) of more than $1,000,000 in either of the fiscal years ended December 31, 2023 and December 31, 2024 (including by means of royalty payments);
(iii) (A) contains covenants that limit in any material respect the freedom of the Company or any of its Subsidiaries to compete or engage in any line of business or to conduct business with any Person in any geographic area, (B) obligates the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party, or sell any product or service exclusively to a single party, or (C) under which any Person has been granted the right to manufacture, sell, market or distribute any product or service of the Company or its Subsidiaries on an exclusive basis to any Person or group of Persons or in any geographical area;
(iv) provides for or governs the formation, creation, operation, management or control of any material partnership or joint venture;
(v) provides for the use or license by the Company or any of its Subsidiaries of any Intellectual Property Rights owned by a third party, other than Incidental Contracts;
(vi) provides for the use or license by any third party of any material Company Intellectual Property Rights;
(vii) involves the acquisition or disposition, directly or indirectly (by merger, sale of stock, sale of assets or otherwise), by the Company or any of its Subsidiaries of any material assets (other than cash) or any material capital stock or other equity interest of another Person, other than the sale of inventory in the ordinary course of business, that has continuing indemnification, earn-out or milestone payments or other contingent consideration payment obligations by the Company or any of its Subsidiaries;
(viii) constitutes a material manufacturing, supply, distribution or marketing agreement (or group of substantially related existing Contracts) that provides for minimum purchase obligations by the Company or any of its Subsidiaries in any prospective twelve (12) month period;
(ix) contains any royalty, dividend, milestone payment or similar contingent payment arrangement based on the revenues or profits of the Company or any of the Company Subsidiaries;
(x) other than solely among the Company and wholly owned Subsidiaries of the Company, relates to Indebtedness having an outstanding principal amount in excess of $1,000,000;
(xi) involves the settlement of any pending or currently threatened claim, action or proceeding;
(xii) is an agreement entered into in connection with a settlement agreement, corporate integrity agreement, consent decree, deferred prosecution agreement, or other similar type of agreement with or imposed by any Governmental Authority;
(xiii) is a collective bargaining agreement or Contract with any labor union, trade organization, works council or other employee representative body (other than any statutorily mandated agreement in non-U.S. jurisdictions);
(xiv) is with a customer or supplier required to be listed in Section 3.25 of the Company Disclosure Letter or is with a sole source supplier of any goods or services to the Company or any of its Subsidiaries;
(xv) is an employment or consulting contract (in each case with respect to which the Company has continuing obligations as of the date hereof) agreement with any current or former (xA) executive officer of the CompanyCompany or any of its Subsidiaries, (yB) member of the Board of DirectorsCompany Board, or (zC) employee of the Company employee providing for or any of its Subsidiaries with an annual base salary in excess of $200,000300,000, other than those that are terminable by the Company or any Subsidiary without advance notice and without Liability to the Company or its Subsidiaries other than to make continued healthcare coverage available under COBRA or similar state Law;
(iiixvi) any contract providing for indemnification or any guaranty by the Company, in each case that is material to the Company, other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course of business;a Real Property Lease; or
(ivxvii) any contract that purports to limit in any material respect provides for annual capital expenditures after the right date of the Company (x) to engage in any line of business, or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value this Agreement in excess of $250,000;
(vi) any contract that contains any provision that requires 500,000 during the purchase current or subsequent fiscal year or, together with all other Contracts providing for capital expenditures, provides for annual capital expenditures after the date of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case this Agreement in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement 1,000,000 during the current or other contract with any labor union;
(xi) any other contract under which subsequent fiscal year. Each Contract of the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise type described in clauses (i)–(xi) through (xvii) above;
(xii) any contract which , other than a Plan, is not otherwise described in clauses (i)-(xi) above that is material referred to the Company; or
(xiii) any contract relating to material Company IPherein as a “Material Contract.”
(b) True and complete copies of all Material Contracts (including all amendments, waivers or changes thereto) have been made available to Parent or its Representatives. Except as would not, individually or in the aggregate, have a Company Material Adverse Effect, (i) All of the each Material Contracts are Contract is valid and binding on the Company or its Subsidiariesthe Subsidiary of the Company that is party thereto and, enforceable against it in accordance with its termsto the Knowledge of the Company, each other party thereto, and are is in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policythe Enforceability Exceptions, (ii) neither the Company and its Subsidiaries have complied with all obligations required to be performed or complied with by them under each Material Contract, (iii) there is no default under any Material Contract by the Company or any Subsidiary norof its Subsidiaries, or, to the knowledge Knowledge of the Company, by any third other party is in violation of any provision ofthereto, or failed to perform any obligation required under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iiiiv) neither the Company or any Subsidiary nor, to the knowledge Knowledge of the Company, neither the Company nor any of its Subsidiaries has received any written notice from any third party, is in breach, or has received written notice of material breach, of party to any Material Contract, except as disclosed in Schedule 3.13Contract that such party intends to terminate such Material Contract for any default or alleged default thereunder.
Appears in 2 contracts
Sources: Merger Agreement (Globus Medical Inc), Merger Agreement (Nevro Corp)
Material Contracts. (a) For purposes Section 3.17(a) of the Disclosure Schedule sets forth a true and complete list as of the date of this Agreement, “Material Contract” shall mean Agreement of each of the following Company Contracts, together with all amendments thereto: (i) each Company Contract that restricts in any material respect the ability of the Company or any of its Subsidiaries or any of the Company’s current or future Affiliates to sell products in or otherwise compete in any geographic area or line of business; (ii) any Company Contract pursuant to which any Person provides manufacturing services involving the Product, any Pipeline Product or any product using Nab® Technology for the Company or any of its Subsidiaries, (iii) each Company Contract pursuant to which the Company or any Subsidiary of its Subsidiaries grants or is granted any license to use or exploit, covenant not to ▇▇▇, immunity from suit or similar rights under any Intellectual Property of a third party that, in each case, is related to the Product, any Pipeline Product, or the Nab® Technology; (iv) each Company Contract pursuant to which raw materials are supplied, or equipment is supplied or leased, to the Company or any of their its Subsidiaries (excluding purchase orders given or received in the ordinary course of business), in each case relating to any key component or manufacturing involved in the compounding or formulation of the Product or any products using Nab® Technology; (v) each Company Contract that grants any right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of its Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material amount of assets are bound:
or businesses relating to the Product, any Pipeline Product, or the Nab® Technology; (ivi) each Company Contract providing for future performance by the Company or any of its Subsidiaries in consideration of amounts previously paid, the balance of which exceeds $5,000,000 as of the date of this Agreement; and (vii) any other “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act) that were required to be filed with or furnished to the SEC prior to the date of this Agreement. Each Company Contract (A) of the type described in Section 3.17(a) of the Disclosure Schedule, whether or not disclosed in response to this Section 3.17(a), or referred to in Section 3.17(b), whether or not provided or publicly filed, and (B) entered into after the date of this Agreement and of the type required to be described in Section 3.17(a) or referred to in Section 3.17(b), whether or not provided or publicly filed by of the Disclosure Schedule if such Company with the Commission;
(ii) any employment or consulting contract (Contract were in each case with respect to which the Company has continuing obligations effect as of the date hereofof this Agreement, is referred to herein as a “Material Contract.”
(b) The Company has provided to Parent or publicly filed with any current or former (xthe SEC true and complete copies of each Company Contact referred to in Section 3.17(a) executive officer and each of the Company, (y) member of the Board of Directors, or (z) following Company employee providing for an annual base salary in excess of $200,000;
(iii) any contract providing for indemnification or any guaranty by the CompanyContacts, in each case that is material to are in effect as of the Company, other than any contract providing for indemnification date of this Agreement: (i) each Company Contract with customers (excluding purchase orders given or other Persons pursuant to contracts entered into received in the ordinary course of business;
(iv) any contract that purports to limit in any material respect the right of under which the Company (x) to engage in or any line of business, or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value its Subsidiaries received in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product 10,000,000 in 2009 or service from a given third party, which product or service is material expected to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case receive in excess of $250,000, other than accounts receivables 10,000,000 in 2010 or any year thereafter; (ii) each Company Contract pursuant to which the Company or any of its Subsidiaries occupies Leased Real Property and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company or any of its Subsidiaries is obligated required to make payment or incur costs pay an annual rental in excess of $250,000 5,000,000 in 2010 or any year thereafter; and (iii) each Company Contract for any joint venture (whether in partnership, limited liability company or other organizational form), co-promote agreements or co-branding agreements (other than distribution agreements) or agreements pursuant to which is not otherwise described in clauses (i)–(x) above;
(xii) the Company or any contract which is not otherwise described in clauses (i)-(xi) above that is material to of its Subsidiaries permitted distribution of the Company; or
(xiii) any contract relating to material Company IPProduct or the Pipeline Products under another party’s name or trademarks.
(b) (ic) All of the Material Contracts are valid and binding on the Company or its Subsidiaries, enforceable against it in accordance with its terms, and are in full force and effecteffect and enforceable in accordance with their respective terms, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws Laws of general applicability relating to or affecting creditors’ rights generally and rules of law governing specific performancegeneral equity principles, injunctive relief except to the extent that (i) such Material Contracts have previously expired or other equitable remedies, and to limitations of public policy, otherwise terminated in accordance with their terms or (ii) neither the failure to be in full force and effect would not reasonably be expected to have a Company Material Adverse Effect. Neither the Company or nor any Subsidiary of its Subsidiaries, nor, to the knowledge Knowledge of the Company, any third party is in violation of counterparty to any such Material Contract, has violated any provision of, or committed or failed to perform any obligation required act which, with or without notice, lapse of time or both, would constitute a default under, or give rise to a right of termination, modification, cancellation, foreclosure, imposition of a Lien, prepayment or acceleration under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the Company or any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or has received written notice of material breach, of any Material Contract, except as disclosed in Schedule 3.13each case for those violations or defaults which would not reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries has received written notice that it has breached, violated or defaulted under any Material Contract. Prior to the date of this Agreement, the Company and its Subsidiaries have not received any written claims for indemnification pursuant to the 2007 Separation and Distribution Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Abraxis BioScience, Inc.), Merger Agreement (Celgene Corp /De/)
Material Contracts. (a) For purposes Section 3.12 of the Company Disclosure Letter sets forth a list of each of the following Contracts to which, as of the date of this Agreement, “Material Contract” shall mean the following to which the Company or any Subsidiary of its Subsidiaries is a party or any of their assets are bound:(each, a “Company Material Contract”):
(i) any “material contract” each Contract (as such term is defined in Item 601(b)(10A) of Regulation S-K not to (or otherwise restricting or limiting the ability of the Securities Act), whether Company or not filed by any of its Subsidiaries to) compete in any line of business or geographic area or (B) to restrict the ability of the Company with the Commissionor any of its Subsidiaries to conduct business in any geographic area;
(ii) each Contract (other than any employment Company Benefit Plan) providing for or consulting contract (resulting in each case with respect to which payments by the Company has continuing obligations as or any of its Subsidiaries that exceeded $250,000 since the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000Incorporation Date;
(iii) all Contracts granting to any contract providing Person an option or a first refusal, first offer or similar preferential right to purchase or acquire any material Company Assets;
(iv) all material Contracts for indemnification the granting or receiving of a license, sublicense or franchise or under which any Person is obligated to pay or has the right to receive a royalty, license fee, franchise fee or similar payment;
(v) all partnership, joint venture or other similar agreements or arrangements;
(vi) any agreement relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement with an aggregate outstanding principal amount not exceeding $1,000,000;
(vii) any agreement for the disposition or acquisition by the Company or any guaranty by of its Subsidiaries, with material obligations of the Company, in each case that is material to the Company, Company or any of its Subsidiaries (other than confidentiality obligations) remaining to be performed or material liabilities of the Company or any contract providing for indemnification of customers its Subsidiaries continuing after the date of this Agreement, of any material business or any material amount of assets other Persons pursuant to contracts entered into than in the ordinary course of business;
(ivviii) any contract that purports to limit in any material respect an agreement with a (A) the right top 10 customers of the Company and its Subsidiaries, taken as a whole, as applicable, and (xB) to engage in any line the top 10 suppliers of business, or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with and its Subsidiaries, taken as a fair market value whole, as applicable (in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of each case measured by aggregate obligations paid or agreed to since the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Companyinception);
(ix) any mortgagesagreement restricting or limiting the payment of dividends or the making of distributions to stockholders, indentures, guarantees, loans including intercompany dividends or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, distributions other than accounts receivables and payablessuch restrictions or limitations that are required by applicable Law;
(x) any employee collective bargaining agreement or Contract for the development of Intellectual Property, other contract than those entered into in the ordinary course of business with any labor union;Company employees and contractors on the Company’s standard form for such Contracts; and
(xi) any other contract under which to the extent not set forth in Section 3.12(a) of the Company is obligated Disclosure Letter pursuant to make payment or incur costs in excess another subsection of $250,000 in this Section 3.12(a), all material agreements with any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IPGovernmental Authority.
(b) A true and complete copy of each Company Material Contract (iincluding any amendments thereto) All entered into prior to the date of this Agreement has been made available to Parent prior to the date of this Agreement. Each Company Material Contracts are Contract is a valid and binding on agreement of the Company or its Subsidiariesapplicable Subsidiary, enforceable against it except where the failure to be valid and binding would not, individually or in accordance with its termsthe aggregate, and are reasonably be expected to have a Company Material Adverse Effect. Except as would not, individually or in full force and effectthe aggregate, subject reasonably be expected to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policyhave a Company Material Adverse Effect, (iii) neither the Company or any such Subsidiary nor, to the knowledge Knowledge of the Company, any third other party thereto, is in violation breach of or default under any provision of, or failed to perform any obligation required under the provisions of, any such Company Material Contract, except (ii) as disclosed in Schedule 3.13 of the date of this Agreement, there are no material disputes with respect to any such Company Material Contract and (iii) neither the Company or any Subsidiary nor, to the knowledge as of the Companydate of this Agreement, no party under any third party, is in breach, or Company Material Contract has received given written notice of its intent to terminate or otherwise seek a material breach, of any amendment to such Company Material Contract, except as disclosed in Schedule 3.13.
Appears in 2 contracts
Sources: Merger Agreement (Ikonics Corp), Merger Agreement (Ikonics Corp)
Material Contracts. (a) For purposes The Company has delivered or otherwise made available to Newco true, correct and complete copies of this Agreementall contracts and agreements in effect on the date hereof (and all amendments, “Material Contract” shall mean modifications and supplements thereto and all related letter agreements to which the following Company is a party affecting the obligations of any party thereunder) to which the Company or any Subsidiary Company Subsidiaries is a party or by which any of their its properties or assets are boundbound that are material to the financial condition, results of operations, business, properties, prospects or assets of the Company and the Company Subsidiaries taken as whole (collectively, the "Company Material Contracts"). The Company Material Contracts shall be deemed to include all: (i) employment, consulting, non-competition, severance, golden parachute or indemnification contracts (including, without limitation, any contract to which the Company is a party involving employees of the Company); (ii) licensing, merchandising or distribution agreements; (iii) contracts granting a right of first refusal or first negotiation; (iv) partnership or joint venture agreements; (v) agreements for the acquisition, sale or lease of material properties or assets of the Company (by merger, purchase or sale of assets or stock or otherwise) entered into since May 26, 1993 (other than the acquisition of the Brentwood, Tennessee property, which has been disposed of by the Company); (vi) contracts or agreements with any Governmental Entity; (vii) all material agreements relating to indebtedness of the Company or any Company Subsidiary or guarantees of indebtedness by the Company or any Company Subsidiary; (viii) all noncompetition, exclusivity or other agreements restricting the ability of the Company or any Company Subsidiary to operate its business as now, or contemplated to be, conducted; (ix) agreements between the Company and any of its officers, its directors, holders of 5% of the outstanding Shares or other affiliates of the Company or any Company Subsidiary (all of which agreements are also listed in Section 3.15(a)(ix) of the Company Disclosure Schedule); and (x) all commitments and agreements to enter into any of the foregoing.
(b) Except as set forth in Section 3.15(b) of the Company Disclosure Schedule:
(i) There is no default under any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act), whether or not filed Company Material Contract either by the Company with or, to the Commission;
(ii) any employment or consulting contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current or former (x) executive officer knowledge of the Company, (y) member by any other party thereto, and no event has occurred that with the lapse of time or the Board giving of Directors, notice or (z) Company employee providing for an annual base salary in excess of $200,000;
(iii) any contract providing for indemnification or any guaranty by the Company, in each case that is material to the Company, other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course of business;
(iv) any contract that purports to limit in any material respect the right of the Company (x) to engage in any line of business, or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), both would constitute a default thereunder by the Company of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IP.
(b) (i) All of the Material Contracts are valid and binding on the Company or its Subsidiaries, enforceable against it in accordance with its terms, and are in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the Company or any Subsidiary nor, to the knowledge of the Company, any third other party, in any such case in which such default or event could reasonably be expected to have a Company Material Adverse Effect.
(ii) No party is in violation of to any provision of, or failed such Company Material Contract has given notice to perform any obligation required under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the Company of or made a claim against the Company with respect to any Subsidiary norbreach or default thereunder, in any such case in which such breach or default could reasonably be expected to the knowledge of the Company, any third party, is in breach, or has received written notice of material breach, of any have a Company Material Contract, except as disclosed in Schedule 3.13Adverse Effect.
Appears in 2 contracts
Sources: Transaction Agreement (Progressive Food Concepts Inc), Transaction Agreement (Harrys Farmers Market Inc)
Material Contracts. (aSection 4.19(a) For purposes of this Agreementthe Company Disclosure Schedule lists, “Material Contract” shall mean as of the date hereof, each of the following types of Contracts to which the Company or any Subsidiary of its Subsidiaries is a party or by which any of the Company, its Subsidiaries or any of their respective properties is bound (such Contracts required to be so listed, the “Company Material Contracts”):
(a) any Contract that would be required to be filed by the Company as an exhibit to a registration statement on Form S-1 or an annual report on Form 10-K filed by the Company;
(b) any Contract that limits the ability of the Company or any of its Subsidiaries or Affiliates to compete in any line of business or with any Person or in any geographic area, or that restricts the right of the Company or any of its Subsidiaries or Affiliates to sell to or purchase from any Person or to hire any Person, or that grants the other party or any third Person “most favored nation” status or any type of analogous rights;
(c) any Contract with respect to the formation, creation, operation, management or control of a joint venture, partnership, limited liability company or other similar arrangement;
(d) any Contract evidencing or relating to Indebtedness;
(e) any Contract involving the acquisition or disposition, directly or indirectly, of (i) any Person or substantially all of the assets are bound:thereof, or (ii) any business units;
(f) any Contract relating to the employment of any Person;
(g) any Contract that by its terms provides for the aggregate payment or receipt by the Company and its Subsidiaries of more than $250,000 over the remaining term of such Contract;
(h) any Contract pursuant to which the Company or any of its Subsidiaries has continuing indemnification, guarantee, “earn-out” or other contingent payment obligations;
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act), whether or not filed by the Company with the Commission;
(ii) any employment or consulting contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000;
(iii) any contract providing for indemnification or any guaranty by the Company, in each case that is material to the Company, other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course of business;
(iv) any contract that purports to limit in any material respect the right of the Company (x) to engage in any line of business, or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract Contract that obligates the Company or any of its Subsidiaries to conduct business on an exclusive make any capital commitment or preferential basis with investment in, or loan to, any third partyPerson (other than the Company and its Subsidiaries);
(viiij) any partnershipContract between the Company or any of its Subsidiaries, joint venture on the one hand, and any director or similar contract officer, or direct or indirect stockholder, of the Company or any of its Subsidiaries, on the other hand, excluding any Company Plan;
(k) any Contract with respect to any Company Leased Real Property;
(l) any Contract with any Governmental Entity;
(m) any Contract that requires a notice or consent in connection with the transactions contemplated hereby, or that otherwise contains a provision relating to “change of control” or “assignment by operation of law” or an analogous provision, or that would otherwise reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated hereby; and
(n) any Contract that is otherwise material to the Company;
(ix) any mortgagesCompany and its Subsidiaries, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether taken as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the a whole. Each Company Material Contract is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IP.
(b) (i) All of the Material Contracts are valid and binding on the Company or its SubsidiariesSubsidiaries party thereto and, to the Knowledge of the Company, each other party thereto, and is in full force and effect and enforceable against it in accordance with its termsterms (except with respect to any Enforceability Exceptions). The Company and each of its Subsidiaries and, and are in full force and effectto the Knowledge of the Company, subject each other party thereto, has performed all material obligations required to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither be performed by it under each Company Material Contract. There is no material default under any Company Material Contract by the Company or any Subsidiary norof its Subsidiaries or, to the knowledge Knowledge of the Company, any third other party is in violation thereto, and no event or condition has occurred that constitutes or, after notice or lapse of any provision oftime or both, or failed to perform any obligation required under would constitute, a material default on the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither part of the Company or any Subsidiary norof its Subsidiaries or, to the knowledge Knowledge of the Company, any third partyother party thereto, is in breachnor, as of the date hereof, has the Company or has any of its Subsidiaries received written any notice of any such material breachdefault, event or condition. The Company has made available to Parent on the Virtual Data Room true and complete copies of any all Company Material Contract, except as disclosed in Schedule 3.13Contracts.
Appears in 2 contracts
Sources: Merger Agreement (Fitlife Brands, Inc.), Merger Agreement (iSatori, Inc.)
Material Contracts. (a) For purposes Schedule 4.19 of the Company Disclosure Schedule sets forth a true and complete list, as of the date hereof, of each of the Company’s Material Contracts (true, correct and complete copies of which have been made available to Parent prior to the date of this Agreement, subject to the redaction of certain price, term and termination provisions of, and certain clearly marked exhibits and schedules to, such Contracts). As used in this Agreement, “Material Contract” shall mean the following means each Contract, written or oral, to which the Company or any Subsidiary its Subsidiaries is a party or by which any of their respective properties or assets are bound:,
(i) any that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities ActSEC), whether or not filed by the Company with the Commission;
(ii) any employment that involves required payments or consulting contract (in each case with respect receipts by or to which the Company has continuing obligations as of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for and/or its Subsidiaries in an annual base salary amount in excess of $200,000250,000, except for any such Contract that may be canceled, without material penalty or other liability to the Company or any of its Subsidiaries, upon notice of thirty calendar days or less;
(iii) that grants exclusivity, any contract providing for indemnification right of first refusal or right of first offer or that limits or purports to limit the ability of the Company or any guaranty by Subsidiary of the CompanyCompany to compete with or obtain products or services from any Person or own, in each case that is operate, sell, transfer or otherwise dispose of any material to the Company, other than any contract providing for indemnification amount of customers assets or other Persons pursuant to contracts entered into in the ordinary course of businessbusinesses or imposes similar restrictions;
(iv) that restricts the payment of dividends or distributions in respect of any contract capital stock of the Company or its Subsidiaries, or the purchase, redemption or other acquisition of such capital stock;
(v) that relates to any acquisition or divestiture by the Company or any of its Subsidiaries of a business or any assets or capital stock of a Person and pursuant to which the Company or any Subsidiary of the Company has any material continuing obligation (including any material indemnification obligation or any material obligation relating to an earn-out or other similar payments);
(vi) that (A) purports to limit in any material respect either the type of business in which the Company or any Subsidiary of the Company (or, after the Effective Time, Parent or its Affiliates) 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 Company or any Subsidiary of the Company (or, after the Effective Time, Parent or its Affiliates); (C) grants “most favored nation” status that, following the Merger, would apply to Parent and/or its Affiliates; or (D) materially prohibits or limits the right of the Company or any Subsidiary of the Company (xor, after the Effective Time, Parent or its Affiliates) to engage in make, sell or distribute any line products or services or use, transfer, license, distribute or enforce any of business, or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Companytheir respective Intellectual Property Rights;
(vii) that relates to indebtedness for borrowed money (including the issuance of any contract that obligates the Company debt security), any capital lease obligations, any guarantee of such indebtedness or debt securities of any other Person, or any “keep well” or other agreement to conduct business on an exclusive or preferential basis with maintain any third partyfinancial statement condition of another Person;
(viii) any partnership, joint venture that would prevent or similar contract that is material to materially impair the Company’s ability to consummate the Merger or other transactions contemplated hereby;
(ix) that is any mortgages, indentures, guarantees, loans joint venture or credit agreements, security agreements partnership agreement or other contracts, in each case similar agreement or arrangement entered into with another Person relating to indebtedness for borrowed moneythe formation, whether as borrower creation, operation, management or lender, in each case in excess control of $250,000, other than accounts receivables and payablesany partnership or joint venture;
(x) that relates to an investment in any employee collective bargaining agreement other Person that either requires payments over the term of the investment in excess of $1,000,000 in value, whether in cash or assets, or pursuant to which the Company or its applicable Subsidiary has the right to designate one or more members to the board of directors or similar governing body of such Person (or its Affiliates) or other contract governance rights with any labor union;respect to such Person (or its Affiliates); or
(xi) any other contract under which that is listed (or required to be listed) in Schedule 4.15(b) of the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IPDisclosure Schedule.
(b) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect: (i) All each of the Material Contracts are is valid and binding on the Company or its Subsidiaries, enforceable against it in accordance with its termsas the case may be, and are in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the Company or any Subsidiary norand, to the knowledge of the Company, any third each other party thereto, and is in violation full force and effect, (ii) no event has occurred with respect to the Company or any of its Subsidiaries, and neither the Company nor any of its Subsidiaries, nor to the Company’s knowledge any other party to a Material Contract, has violated any provision of, or taken or failed to perform take any obligation required act which, with or without notice, lapse of time, or both, would constitute a default under the provisions of, any of such Material Contract, except as disclosed in Schedule 3.13 Contract and (iii) neither the Company nor any of its Subsidiaries has received notice from any other party to a Material Contract that it has breached, violated or defaulted under any Material Contract or that any such party intends to terminate, or not to renew, any such Material Contract. Neither the Company nor any of its Subsidiaries is party to any Contract containing any provision or covenant limiting in any material respect the ability of the Company or any Subsidiary norof its Subsidiaries (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) to (i) sell any products or services of or to any other Person or in any geographic region, (ii) engage in any line of business or (iii) 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 knowledge Company or any of its Subsidiaries (or, after the consummation of the CompanyMerger, Parent, the Surviving Corporation or any third party, is in breach, or has received written notice of material breach, of any Material Contract, except as disclosed in Schedule 3.13their respective Subsidiaries).
Appears in 2 contracts
Sources: Merger Agreement (LoopNet, Inc.), Merger Agreement (Costar Group Inc)
Material Contracts. (a) For purposes Section 3.20(a) of the Company Disclosure Letter sets forth, as of the date of this Agreement, “Material Contract” shall mean a correct and complete list of each of the following types of Contracts to which the Company, any Company Sharing Company (to the extent applicable) or any of their respective Subsidiaries is a party, or by which any of their respective properties or assets is bound:
(i) each Contract that, (A) limits or restricts the Company, any Company Sharing Company or any of their Subsidiaries from competing in any line of business or with any Person in any geographic region, (B) contains exclusivity obligations or restrictions binding on the Company, any Company Sharing Company or any of their respective Subsidiaries, (C) requires the Company, any Company Sharing Company or any of their respective Subsidiaries to conduct any business on a “most favored nations” basis with any third party or (D) provides for rights of first refusal or offer or any similar requirement or right in favor of any third party in respect of a Minority Investment Entity, and, in the case of each of clauses (A) through (D), that is material to the Company and its Subsidiaries, taken as a whole;
(ii) each Contract that is a joint venture, partnership, limited liability company or similar agreement that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract that is a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than letters of credit and those between the Company and its wholly owned Subsidiaries) relating to indebtedness for borrowed money in an amount in excess of $10 million individually;
(iv) each Contract with respect to an interest, rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $5 million;
(v) each Contract that is an acquisition agreement or a divestiture agreement or agreement for the sale, lease or license of any business or properties or assets of or by the Company (by merger, purchase or sale of assets or stock) entered into since January 1, 2016 pursuant to which (A) the Company has any outstanding obligation to pay after the date of this Agreement consideration in excess of $5 million or (B) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement with a fair market value or purchase price of more than $5 million, excluding, in each case, (x) any Contract relating to Program Rights and (y) acquisitions or dispositions of supplies, inventory or products in connection with the conduct of the Company’s and its Subsidiaries’ business or of supplies, inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or its Subsidiaries;
(vi) each Contract pursuant to which the Company or any Subsidiary is a party of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $5 million in the aggregate;
(vii) any Contract relating to Program Rights under which it would reasonably be expected that the Company and its Subsidiaries would make annual payments in excess of $5 million per year;
(viii) any network affiliation Contract (or similar Contract) with ABC, CBS, Fox, NBC, CW or MyNetworkTV;
(ix) any Contract relating to cable or satellite transmission or retransmission with MVPDs that reported more than 50,000 paid subscribers to the Company, any Company Sharing Company or any of their assets are bound:respective Subsidiaries for September 2018 with respect to either (A) the Company’s WGN America cable service or (B) at least one Company Station;
(ix) any Contract that is a Sharing Agreement and any related option agreement (other than those among the Company and its Subsidiaries);
(xi) any Contract that is a channel sharing agreement with a third party or parties with respect to the sharing of spectrum for the operation of two (2) or more separately owned television stations;
(xii) any Contract governing a Company Related Party Transaction;
(xiii) any material Contract with a Governmental Authority (other than as disclosed on Section 3.12 of the Company Disclosure Letter);
(xiv) any material collective bargaining agreement or other material Contract with any labor organization;
(xv) any Contract not terminable at will by the Company or its Subsidiary for the employment of any executive officer or individual employee at the vice president level or above on a full-time, part-time or consulting basis with base compensation in excess of $350,000;
(xvi) any Contract (other than those for Program Rights) pursuant to which the Company or any of its Subsidiaries has sold or traded commercial air time in consideration for property or services with a value in excess of $500,000 in lieu of or in addition to cash;
(xvii) each Contract that is required to be filed by the Company as a “material contract” (as such term is defined in pursuant to Item 601(b)(10) of Regulation S-K of under the Securities Act); and
(xviii) any Contract not otherwise disclosed in Section 3.20 of the Company Disclosure Letter (other than those for Program Rights) under which it was reasonably expected that the Company and its Subsidiaries would make annual payments of $3 million or more during a calendar year, whether or not filed except for those Contracts that can be cancelled by the Company with the Commission;
(ii) any employment or consulting contract (in each case with respect to which the Company has continuing obligations as without cause on less than 90 days’ notice. Each Contract of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000;
(iii) any contract providing for indemnification or any guaranty by the Company, in each case that is material to the Company, other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course of business;
(iv) any contract that purports to limit in any material respect the right of the Company (x) to engage in any line of business, or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise type described in clauses (i)–(xi) above;
through (xiixviii) any contract which is not otherwise described in clauses (i)-(xi) above that is material referred to the Company; or
(xiii) any contract relating to material herein as a “Company IPMaterial Contract”.
(b) (i) All of Except for any Company Material Contract that has terminated or expired in accordance with its terms and except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Contracts are Adverse Effect, each Company Material Contract is valid and binding on and in full force and effect and, to the Company or its SubsidiariesKnowledge of the Company, enforceable against it the other party or parties thereto in accordance with its terms, and are in full force and effect, subject to laws of general application relating to bankruptcythe Enforceability Exceptions. Except for breaches, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to violations or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remediesdefaults which have not had, and would not reasonably be expected to limitations of public policyhave, (ii) individually or in the aggregate, a Company Material Adverse Effect, neither the Company or nor any Subsidiary norof its Subsidiaries, nor to the knowledge Knowledge of the CompanyCompany any other party to a Company Material Contract, any third party is in violation of or in default under any provision of, or failed to perform any obligation required under the provisions of, any of such Company Material Contract, except as disclosed in Schedule 3.13 . True and (iii) neither complete copies of the Company or Material Contracts and any Subsidiary nor, material amendments thereto have been made available to Parent prior to the knowledge date of the Company, any third party, is in breach, or has received written notice of material breach, of any Material Contract, except as disclosed in Schedule 3.13this Agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Nexstar Media Group, Inc.), Agreement and Plan of Merger (Tribune Media Co)
Material Contracts. (a) For purposes Schedules 2.15(a)(i) through (xx) of this Agreement, “Material Contract” shall mean the Company Disclosure Letter set forth a list of each of the following Contracts to which the Company or any Subsidiary is a party or any of their assets are bound:party, in each case identified by the applicable sub-section (“Material Contracts”):
(i) any “material contract” (as such term is defined Contract providing for payments by or to Seller in Item 601(b)(10) the period since January 1, 2008 in an aggregate amount of Regulation S-K of the Securities Act), whether $10,000 or not filed by the Company with the Commissionmore;
(ii) any employment or consulting contract (in each case with respect to which the Company has continuing obligations as of the date hereof) Contract with any current advertiser or former (x) executive officer of agency for the Companypurchase, (y) member of the Board of Directorslicensing, or (z) sale of any Company employee providing for an annual base salary in excess of $200,000Products or other advertising or services, including ad insertion orders, click through agreements, or other purchasing arrangements;
(iii) any contract providing for indemnification Contract with any publisher with respect to the publication or display of Company Products or other advertising, and any guaranty Contract granting any third party the right to market or sell any Company Products, or relating to the advertising or promotion of the business of the Company or pursuant to which any third parties advertise on any websites operated by the Company, in each case that is material to the Company, other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course of business;
(iv) (1) any contract joint venture Contract, (2) any Contract that purports involves a sharing of revenues, profits, cash flows, expenses or losses with other Persons (other than Contracts with Publishers identified in response to limit in Section 2.15(a)(ii) or (3) any material Contract that involves the payment of royalties to any other Person;
(v) any Contract for or relating to the employment or service of any director or officer or any other type of Contract with any of its directors or officers, as the case may be;
(vi) any agreement pursuant to which any other party is granted exclusive rights or “most favored party” rights of any type or scope with respect the right to any of the Company (x) Products or Company Intellectual Property, or containing any non-competition covenants or other restrictions relating to the Company Products or Company Intellectual Property; or that limits the freedom of the Company to engage or participate, or compete with any other Person, in any line of business, market or (y) geographic area with respect to compete with the Company Products or Company Intellectual Property, or to make use of any Person or operate in any geographical locationCompany Intellectual Property Rights;
(vvii) other than “shrink wrap” and similar generally available commercial end-user licenses to software that have an individual acquisition cost of $1,000 or less, all licenses, sublicenses and other Contracts to which Seller is a party and pursuant to which Seller acquired or is authorized to use any Third Party Intellectual Property Rights used in the development, marketing or licensing of the Seller Products;
(viii) any contract license, sublicense or other Contract to which Seller is a party and pursuant to which any Person is authorized to use any Company Intellectual Property;
(ix) any license, sublicense or other Contract pursuant to which Company has agreed to any restriction on the right of Company to use or enforce any Company Owned Intellectual Property Rights or pursuant to which Company agrees to encumber, transfer or sell rights in or with respect to any Company Owned Intellectual Property Rights;
(x) any Contracts relating to the disposition membership of, or acquisitionparticipation by, directly or indirectly (by merger or otherwise), by the Company in, or the affiliation of assets with a fair market value in excess of $250,000the Company with, any industry standards group or association;
(vixi) any contract that contains Contract providing for the development of any provision that requires the purchase of all of the any software, technology or Intellectual Property Rights, independently or jointly, either by or for Company (other than employee invention assignment agreements and consulting agreements with Authors on Company’s requirements for a given product standard form of agreement, copies of which have been made available to Acquirer’s counsel);
(xii) any confidentiality, secrecy or non-disclosure Contract other than any such Contract entered into by Seller in the ordinary course of business consistent with past practice;
(xiii) any Contract to license or authorize any third party to manufacture or reproduce any of the Company Products or Company Intellectual Property;
(xiv) any agreement containing any support, maintenance or service from obligation or cost on the part of Company;
(xv) any settlement agreement;
(xvi) any Contract pursuant to which rights of any third party are triggered or become exercisable, or under which any other consequence, result or effect arises, in connection with or as a given third partyresult of the execution of this Agreement or the consummation of the Merger or other transactions contemplated hereunder, either alone or in combination with any other event;
(xvii) any Contract pursuant to which product the Company agrees to provide any Intellectual Property or service other indemnity that is material not capped at the fees paid or payable to the Company;
(viixviii) any contract that obligates Contract or plan (including any stock option, merger and/or stock bonus plan) relating to the sale, issuance, grant, exercise, award, purchase, repurchase or redemption of any shares of Company Capital Stock or any other securities of the Company or any options, warrants, convertible notes or other rights to conduct business purchase or otherwise acquire any such shares of stock, other securities or options, warrants or other rights therefor, except for the repurchase rights disclosed on an exclusive or preferential basis with any third partySchedule 2.2(a) of the Company Disclosure Letter;
(viiixix) any partnership, joint venture Contract with any labor union or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other similar contract with any labor unionits employees;
(xixx) any other contract under which the Contract with any Governmental Entity, any Company is obligated to make payment Authorization, or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses Contract with a government prime contractor, or higher-tier government subcontractor, including any indefinite delivery/indefinite quantity contract, firm-fixed-price contract, schedule contract, blanket purchase agreement, or task or delivery order (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IPeach a “Government Contract”).
(b) (iUnless otherwise provided in Section 2.15(b) All of the Company Disclosure Letter, all Material Contracts are in written form. The Company has performed all of the obligations required to be performed by it and, subject to compliance by third parties, is entitled to all benefits under, and is not alleged to be in default in respect of, any Material Contract. Each of the Material Contracts are valid and binding on the Company or its Subsidiaries, enforceable against it in accordance with its terms, and are is in full force and effect, subject only to laws the effect, if any, of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium applicable bankruptcy and other similar laws relating to or affecting creditors’ the rights of creditors generally and rules of law governing specific performance, injunctive relief or and other equitable remedies. There exists no default or event of default or event, and occurrence, condition or act, with respect to limitations the Company or to the Company’s knowledge, with respect to any other contracting party, which, with the giving of public policynotice, the lapse of time or the happening of any other event or condition, would reasonably be expected to (i) become a default or event of default under any Material Contract or (ii) neither the Company or any Subsidiary nor, to the knowledge of the Company, give any third party is in violation of (A) the right to declare a default or exercise any provision of, or failed to perform any obligation required remedy under the provisions of, any Material Contract, except as disclosed (B) the right to a rebate, chargeback, refund, credit, penalty or change in Schedule 3.13 and (iii) neither the Company or any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or has received written notice of material breach, of delivery schedule under any Material Contract, except as disclosed in Schedule 3.13(C) the right to accelerate the maturity or performance of any obligation of the Company under any Material Contract, or (D) the right to cancel, terminate or modify any Material Contract. The Company has not received any notice or other communication regarding any actual or possible violation or breach of, default under, or intention to cancel or modify any Material Contract. The Company has no Liability for renegotiation of Government Contracts. Correct and complete copies of all Material Contracts have been made available to Acquirer prior to the Agreement Date.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Exponential Interactive, Inc.)
Material Contracts. (a) For purposes As of the date hereof, except for this Agreement, “Material Contract” shall mean the following to which none of the Company or any Subsidiary of its subsidiaries is a party to or bound by any of their assets are boundContract:
(i) any that would be required to be filed by the Company as a “material contract” (as such term is defined in pursuant to Item 601(b)(10) of Regulation S-K of under the Securities Act), whether or not filed by the Company with the Commission;
(ii) any employment or consulting contract (in each case with respect to under which the Company has continuing obligations as or any of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directorsits subsidiaries is, or (z) Company employee providing for an annual base salary is reasonably likely to be, entitled to receive revenues of more than $75,000 in excess of $200,000any calendar year;
(iii) any contract providing for indemnification under which the Company or any guaranty by of its subsidiaries is or is reasonably likely to become subject to any obligation to pay a liability of more than $75,000 in any calendar year;
(iv) that creates a Lien on (A) any property or asset of the CompanyCompany or any of its subsidiaries other than Permitted Liens or (B) any Shares;
(v) that constitutes a Real Property Lease;
(vi) under which the Company or any of its subsidiaries has granted or received a license or sublicense or under which the Company or such subsidiary is obligated to pay, or has the right to receive, a royalty, license fee or similar payment, in each case that is material to the Company, other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course of business;
(ivvii) between the Company or any contract of its subsidiaries, on the one hand, and any person that purports to limit in any material respect the right holds more than 5% of the Company Common Stock, or any Related person or affiliate of any such person, on the other;
(xviii) involving a share of profits or losses by the Company or any of its subsidiaries with any other person, including any joint venture, partnership or similar agreement;
(ix) containing covenants that in any way purport to restrict the business activity of the Company or any of its subsidiaries or limit the freedom of the Company or any of its subsidiaries to engage in any line of business, business or (y) to compete with any Person or operate in any geographical locationperson;
(vx) any contract relating to other than solely among wholly-owned subsidiaries of the disposition Company, governing the borrowing of money, the Guarantee or acquisitionthe repayment of Indebtedness or conditional-sale arrangements or interest-rate- or currency-hedging activities, directly or indirectly (by merger or otherwise)in each case, by the Company of assets with a fair market value in an amount in excess of $250,00075,000;
(vixi) granting to any contract that contains person a first refusal, a first offer or similar preferential right to purchase or acquire any provision that requires the purchase of all material right, asset or property of the Company’s requirements for a given product Company or service from a given third party, which product any of its subsidiaries or service is material to the Companyany Shares;
(viixii) any contract involving a material distributor, sales representative or broker arrangement that obligates by its express terms is not terminable by the Company to conduct business on an exclusive or preferential basis with any third partyof its subsidiaries at will or by giving notice of 30 days or less, without liability;
(viiixiii) involving the acquisition by the Company or any of its subsidiaries of any business enterprise whether by stock or asset purchase or otherwise;
(xiv) entered into by the Company or any of its subsidiaries outside the ordinary course of business and under which the Company and its subsidiaries, taken as a whole, could have liability in an aggregate amount in excess of $75,000;
(xv) with respect to a joint venture, partnership, limited liability or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture or similar contract that is material to the Company;business of the Company and the subsidiaries, taken as a whole; or
(ixxvi) with respect to any mortgagesacquisition pursuant to which the Company or any of its subsidiaries has continuing indemnification, indentures, guarantees, loans or credit agreements, security agreements “earn-out” or other contractscontingent payment obligations, in each case relating case, that would reasonably be expected to indebtedness for borrowed money, whether as borrower or lender, result in each case payments in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise 20,000. Each such Contract described in clauses (i)–(xi) above;
through (xii) any contract which is not otherwise described in clauses (i)-(xixvi) above that is material referred to the Company; or
(xiii) any contract relating to material Company IPherein as a “Material Contract.”
(b) (i) All Each of the Material Contracts are is in full force and effect and valid and binding on the Company and each of its subsidiaries party thereto and, to the knowledge of the Company, each other party thereto. There is no material breach or its Subsidiaries, enforceable against it in accordance with its terms, and are in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither material default under any Material Contract by the Company or any Subsidiary norof its subsidiaries or, to the knowledge of the Company, by any other party, and no event has occurred that, with the lapse of time or the giving of notice or both, would constitute a material default thereunder by the Company or any of its subsidiaries or, to the knowledge of the Company, by any other party. None of the Company, any of its subsidiaries or, to the knowledge of the Company, any third other party is in violation of to any provision ofMaterial Contract has terminated, or failed purported to perform any obligation required under the provisions ofterminate, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the Company or any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or has received written notice of material breach, of any Material Contract, except as disclosed in Schedule 3.13.
Appears in 2 contracts
Sources: Merger Agreement (Ace Comm Corp), Merger Agreement (Ace Comm Corp)
Material Contracts. (a) For purposes Section 4.15 of the Company Disclosure Schedules sets forth a true, correct and complete list, as of the date of this Agreement, “Material Contract” shall mean of the following to Contracts (but not including any Lease Agreements or Company Employee Plans) by which any of the Company or any of the Company Subsidiaries is bound and under which the Company or any Subsidiary is a party of the Company Subsidiaries has ongoing executory obligations or any of their assets are bound:the ability to enforce rights thereunder (collectively, the “Material Contracts”):
(i) any each Contract required to be filed by the Company as a “material contractMaterial Contract” (as such term is defined in pursuant to Item 601(b)(10) of Regulation S-K of under the Securities Act), whether or not filed by the Company with the Commission;
(ii) any employment or consulting contract (in each case with respect Contract to which the Company has continuing obligations as or any of the date hereof) Company Subsidiaries is a party that restricts the ability of the Company or any of the Company Subsidiaries to compete in any business or with any current or former (x) executive officer of Person in any geographical area, in each case, in a manner that is material to the CompanyCompany and the Company Subsidiaries, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000taken as a whole;
(iii) each credit agreement, note, debenture, bond, indenture and other similar Contract pursuant to which any contract providing for indemnification Indebtedness of the Company or any guaranty by of the CompanyCompany Subsidiaries, in each case that in excess of $250,000 is material to the Companyoutstanding or may be incurred, other than any contract providing for indemnification such Contract between or among any of customers the Company or any of the Company Subsidiaries;
(iv) each Contract to which the Company or any of the Company Subsidiaries is a party with an ISO, sales representative, sales agent, referral partner, sub-agent or any other Persons Person pursuant to contracts entered into which the Company or any of its Subsidiaries generated $250,000 or more in the twelve (12) month period ended December 31, 2017;
(v) each Contract to which the Company or any of the Company Subsidiaries is a party that is expected to result in aggregate payments in excess of $250,000 by the Company or any of its Subsidiaries in the twelve (12) month period ending December 31, 2018, except for (1) Lease Agreements or (2) Contracts relating to the acquisitions and dispositions of properties and assets in the ordinary course of business;
(ivvi) each Contract entered into within two (2) years of the date of this Agreement, to which the Company or any contract that purports to limit in any material respect the right of the Company Subsidiaries is a party for the acquisition or disposition by the Company or any of the Company Subsidiaries of properties or assets for, in each case, aggregate consideration of more than $250,000 except for acquisitions and dispositions of properties and assets in the ordinary course of business;
(vii) each Contract (1) under which the Company or any of the Company Subsidiaries licenses any Licensed Company IP Rights (other than licenses for commercially-available software) that by its terms calls for fees related to the use of Licensed Company IP Rights by the Company or any of the Company Subsidiaries of more than $250,000 over the remaining term of such Contract (assuming, where applicable, that the sales or user levels remain at the same levels as fiscal year 2017), or (2) under which the Company or any of the Company Subsidiaries has licensed any Company Owned IP to Third Parties (i) under an exclusive license or (ii) that by its terms calls for aggregate royalty payments related to the use of Company Owned IP payable to the Company or any of the Company Subsidiaries of more than $250,000 over the remaining term of such Contract (assuming, where applicable, that the sales or user levels remain at the same levels as fiscal year 2017);
(viii) each Contract under which the Company or any Company Subsidiary has granted any Person registration rights (including demand and piggy-back registration rights);
(ix) each Contract relating to the Warrants;
(x) each Contract relating to engage in the acquisition or disposition of any line Person, business or operations or assets constituting a business (whether by merger, sale of businessstock, sale of assets, consolidation or otherwise) entered into since December 31, 2015 (y) to compete with including any Person such Contract under which contemplated transactions were consummated but under which one or operate in any geographical locationmore of the parties thereto has executory indemnification, earn-out or other liabilities);
(vxi) each Contract which provides for a loan or advance of any contract relating amount to any employee of the disposition Company or acquisitionany temporary agency employee or individual consultant of the Company or any Company Subsidiary, directly or indirectly other than the advancement of travel and other business expenses in the ordinary course of business;
(by merger or otherwise), xii) each Contract (other than pursuant to Organizational Documents) providing for indemnification by the Company or any Company Subsidiary of assets with a fair market value in excess any officer, director or employee of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(viixiii) each Contract or arrangement that involves any contract that obligates officer or director or, to the Company to conduct business on an exclusive Company’s Knowledge, equityholder of the Company, or preferential basis with any third partyAffiliate, spouse or sibling of such Persons;
(viiixiv) each Contract with any partnership, joint venture Card Network or similar contract that is material to with Principal Members of the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contractsCard Networks, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which enabling the Company is obligated or a Company Subsidiary to make payment or incur costs participate in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Companya Card Network; or
(xiiixv) each Contract to which the Company or any contract of the Company Subsidiaries is a party constituting a joint venture, partnership, limited liability or other similar agreement (excluding licensing Contracts) relating to material Company IPthe formation, creation, operation, management or control of any partnership or joint venture.
(b) (i) All The Company has Made Available to Parent true, correct and complete copies of each Material Contract. Each Material Contract is, as of the Material Contracts are date hereof, in full force and effect and a valid and binding on agreement enforceable against the Company or its Subsidiariesany of the Company Subsidiaries party thereto and, enforceable against it to the Company’s Knowledge, each other party thereto, in accordance with its terms, and are in full force and effect, subject to laws of general application relating to except as such enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or Applicable Law affecting creditors’ rights generally and rules by general principles of law governing specific performanceequity and except as has not had and would not reasonably be expected to have, injunctive relief individually or other equitable remediesin the aggregate, and to limitations a Company Material Adverse Effect. As of public policythe date of this Agreement, (ii) neither none of the Company or nor any Subsidiary of the Company Subsidiaries party to, nor, to the knowledge of the Company’s Knowledge, any third other party to, any Material Contract is in violation breach of or default under, or has provided or received any written notice of any provision of, intention to terminate or failed to perform any obligation required under the provisions seek renegotiation of, any Material Contract, except as disclosed has not had and would not reasonably be expected to have, individually or in Schedule 3.13 and the aggregate, a Company Material Adverse Effect. As of the date of this Agreement, no event or circumstance has occurred that, with or without notice or lapse of time or both, would (i) constitute a material breach of or material event of default by the Company, (ii) result in a right of termination for the counterparty or (iii) neither cause or permit the Company acceleration of, or other material changes to, any Subsidiary nor, to material right of the knowledge counterparty or obligation of the Company, any third partyin each case, is in breach, or has received written notice of material breach, of under any Material Contract, except except, in the case of each of clauses (i), (ii) and (iii), as disclosed in Schedule 3.13has not had a Company Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (JetPay Corp), Agreement and Plan of Merger (NCR Corp)
Material Contracts. (a) Section 3.13(a) of the Company Disclosure Letter sets forth a list of all Material Contracts as of the date of this Agreement. For purposes of this Agreement, “Material Contract” shall mean the following means any Contract to which the Company or any Subsidiary of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or any of their respective properties or assets are boundis bound (other than this Agreement and the Company Benefit Plans) that:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K relates to the formation, creation, governance or control of, or the economic rights or obligations of the Securities Act)Company or any of its Subsidiaries in, whether any joint venture, partnership or not filed by other similar arrangement that is material to the business of the Company with the Commissionand its Subsidiaries, taken as a whole;
(ii) any employment or consulting contract (in each case with respect to which provides for Indebtedness of the Company has continuing obligations as or any of the date hereof) with any current its Subsidiaries having an outstanding or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary committed amount in excess of $200,000$ 750,000, other than (A) Indebtedness solely between or among any of the Company and any of its Subsidiaries and (B) letters of credit;
(iii) relates to the employment, severance, retention or indemnification of any contract providing for indemnification employee of the Company or any guaranty by the Company, of its Subsidiaries that receives compensation in each case that is material to the Company, other than any contract providing for indemnification an amount in excess of customers or other Persons pursuant to contracts entered into in the ordinary course of business$250,000 per annum;
(iv) relates to the acquisition or disposition of any contract business, assets or properties (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration under such Contract in excess of $ 750,000 (A) that purports was entered into after January 1, 2013, or (B) pursuant to limit which any earn-out, indemnification or deferred or contingent payment obligations remain outstanding that would reasonably be expected to involve payments by the Company or any of its Subsidiaries of more than $250,000;
(v) prohibits the payment of dividends or distributions in any material respect of the right capital stock of the Company or any of its Subsidiaries, prohibits the pledging of the capital stock of the Company or any of its Subsidiaries or prohibits the issuance of any guarantee by the Company or any of its Subsidiaries;
(vi) is (or contains provisions described in this clause (vi) that are or would reasonably be expected to be) material to the business of the Company and its Subsidiaries, taken as a whole, and contains provisions that prohibit the Company or any of its Subsidiaries from competing in or conducting any line of business or grants a right of exclusivity or “most favored nation” right to any person that prevents the Company or any of its Subsidiaries from entering any territory, market or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries upon notice of ninety (90) days or less;
(vii) relates to any real property owned or leased by the Company or its Subsidiaries;
(viii) to which any Card Network, Regions Bank or any other BIN sponsor bank is party;
(ix) relates to an agreement with (a) Emdeon Business Services LLC or its Affiliates, (b) one of the top ten (10) resellers (based on revenues derived from such resellers during the twelve-month period ending on December 31, 2013), or (c) one of the top ten (10) fuel merchants (based on revenues derived from such fuel merchants during the twelve-month period ending on December 31, 2013); or
(x) (A) is not otherwise covered by clauses (i) through (ix) of this Section 3.13(a) and (B) either (x) is with a vendor or supplier pursuant to engage which the Company and its Subsidiaries made payments of $1 million or more in any line of businessthe twelve-month period ending on May 31, 2014, or (y) to compete is with any Person or operate in any geographical location;
a top ten (v10) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by customer of the Company of assets with a fair market value in excess of $250,000;
and its Subsidiaries (vibased on revenues derived from such customers during the twelve-month period ending on December 31, 2013) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IPBusiness Line.
(b) (i) All of the Material Contracts are valid and binding on the Company or its Subsidiaries, enforceable against it in accordance with its terms, and are in full force and effecteffect (except those that terminate or are terminated after the date of this Agreement in accordance with their respective terms). To the Knowledge of the Company, subject to laws no Person is challenging the validity or enforceability of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither any Material Contract. Neither the Company or nor any Subsidiary norof its Subsidiaries, nor to the knowledge Knowledge of the Company, any third party is in violation of the other parties thereto, has violated any provision of, or committed or failed to perform any obligation required act which (with or without notice, lapse of time or both) would constitute a material default under any provision of, and neither the provisions ofCompany nor any of its Subsidiaries has received written notice that it has violated or defaulted under, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the . Company or any Subsidiary nor, has delivered to the knowledge Parent a complete copy of the Company, any third party, is in breach, or has received written notice of material breach, of any each Material Contract, except as disclosed in Schedule 3.13.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Fleetcor Technologies Inc)
Material Contracts. (a) For purposes No Acquired Company, is a party to or bound by any of this Agreement, the following (a Contract responsive to any of the following categories being hereinafter referred to as a “Material Contract” shall mean the following to which the Company or any Subsidiary is a party or any of their assets are bound:”):
(i) any “material contract” (other than as such term is defined listed in Item 601(b)(103.09(a)(i) of Regulation S-K the Disclosure Schedule, any lease (whether of real or personal property) providing for annual rentals of the Securities Act), whether equivalent of $20,000 or not filed by the Company with the Commissionmore;
(ii) other than as listed in 3.09(a)(ii) of the Disclosure Schedule, any employment or consulting contract (in each case with respect Contract pursuant to which the any Intellectual Property Right or Technology, including any Third Party IP, is licensed, sold, assigned or otherwise conveyed or provided to any Acquired Company or pursuant to which any Person has continuing obligations as of the date hereof) with agreed not to enforce any current or former (x) executive officer of the Intellectual Property Right against any Acquired Company, (y) member of the Board of Directors, or (z) Company employee providing other than Contracts for an annual base salary in excess of $200,000Generally Available Software;
(iii) any contract providing for indemnification Contract pursuant to which any Intellectual Property Right or Technology is or has been licensed (whether or not such license is currently exercisable), sold, assigned or otherwise conveyed or provided to a third party by any Acquired Company, or pursuant to which any Acquired Company has agreed not to enforce any Intellectual Property Right against any third party.
(iv) any Contract imposing any restriction on any Acquired Company’s right or ability, or, after the Closing Date, the right or ability of Purchaser or any guaranty of its Affiliates (A) to compete in any line of business or with any Person or in any area or which would so limit the freedom of Purchaser or any of its Affiliates after the Closing Date (including granting exclusive rights or rights of first refusal to license, market, sell or deliver any of the products or services offered by any Acquired Company or any related Intellectual Property Right), (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) to develop or distribute any Intellectual Property Right or Technology;
(v) other than as listed in 3.09(a)(v) of the Disclosure Schedule, any partnership, joint venture or any sharing of revenues, profits, losses, costs or liabilities or any other similar Contract;
(vi) any Contract relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise) entered into since inception pursuant to which any Acquired Company has any current or future rights or obligations;
(vii) other than as listed in 3.09(a)(vii) of the Disclosure Schedule, any Contract relating to Indebtedness or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset);
(viii) any Contract relating to the acquisition, issuance or transfer of any securities;
(ix) any Contract relating to any interest rate, currency or commodity derivatives or hedging transaction;
(x) any Contract under which (A) any Person has directly or indirectly guaranteed any liabilities or obligations of any Acquired Company or (B) any Acquired Company has directly or indirectly guaranteed liabilities or obligations of any other Person (in each case other than endorsements for the purposes of collection in the ordinary course of business and intercompany guarantees among the Acquired Companies);
(xi) other than as listed in 3.09(a)(xi) of the Disclosure Schedule, any Contract relating to the creation of any Lien (other than Permitted Liens) with respect to any asset of any Acquired Company;
(xii) any Contract which contains any provisions requiring any Acquired Company to indemnify any other party (excluding indemnities contained in agreements for the purchase, sale or license of products or services in the ordinary course of business consistent with past practice);
(xiii) other than as listed in 3.09(a)(xiii) of the Disclosure Schedule, any Contract with any Related Person;
(xiv) any Contract with a Governmental Authority generating revenues or that has been executed within six months prior to the date of this Agreement;
(xv) any employment, severance, retention, change-in-control, bonus or other Contract with any current or former employee, officer, director, advisor or consultant of any Acquired Company (A) pursuant to which any Acquired Company has any current or future rights or obligations other than as a result of normal employment status, (B) that provides for the payment of any cash or other compensation or benefits upon the consummation of the Transaction, or (C) that otherwise restricts any Acquired Company’s ability to terminate the employment or engagement of such individual without penalty or liability (excluding any penalty or liability in respect of the employee’s notice period and right not to be unfairly dismissed), other than, in each case that is material to the Companycase, other than any contract providing for indemnification of customers or other Persons pursuant to contracts Contracts entered into in the ordinary course of business;
(iv) any contract that purports to limit in any material respect the right of the Company (x) to engage in any line of business, or (y) to compete business consistent with past practice with any Person advisor, consultant or operate in employee of any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Acquired Company;
(viixvi) any contract Contract that obligates cannot be provided to the Company to conduct business on an exclusive or preferential basis with any third party;Purchaser; and
(viiixvii) any partnership, joint venture or similar contract other Contract not made in the ordinary course of business that is material to the any Acquired Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IP.
(b) (iSubject to the limitations set forth in Section 5.03(b), Seller has made available to Purchaser accurate and complete copies of all written Contracts identified in Section 3.09(a) All of the Disclosure Schedule, including all amendments thereto. Subject to the limitations set forth in Section 5.03(b), Section 3.09(a) of the Disclosure Schedule provides an accurate description of the material terms of each Material Contract identified in Section 3.09(a) of the Disclosure Schedule that is not in written form. Seller has notified Purchaser of any Contracts are or portions thereof that Seller has withheld from Purchaser pursuant to Section 5.03(b) and has disclosed to Purchaser any material liabilities or obligations under any such Contracts, to the extent permitted thereunder.
(c) Each Material Contract is a valid and binding on agreement of the Acquired Company or its Subsidiaries, enforceable against it in accordance with its termsparty thereto, and are is in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the no Acquired Company or any Subsidiary noris and, to the knowledge Knowledge of the CompanySeller, any third no other party thereto is in violation default or breach in any material respect under the terms of any provision of, or failed to perform any obligation required under the provisions of, any Material such Contract, except as disclosed in Schedule 3.13 and (iii) neither the Company or any Subsidiary norand, to the knowledge Knowledge of Seller, other than as set forth in Section 3.04 of the CompanyDisclosure Schedule regarding the consummation of the Transaction, any third partyno event has occurred, is in breachand no circumstance or condition exists, that (with or without notice or lapse of time) will, or has received written notice would reasonably be expected to, (i) result in a violation or breach of material breach, any of the provisions of any Material Contract, except as disclosed in Schedule 3.13(ii) give any Person the right to declare a default or exercise any remedy under any Material Contract, (iii) give any Person the right to accelerate the maturity or performance of any grant or rights or other obligation under a Material Contract, or (iv) give any Person the right to cancel, terminate or modify any Material Contract.
(d) No Acquired Company has received any written notice or, to the Knowledge of Seller, any other communication regarding any violation or breach of, or default under, any Material Contract.
(e) No Person is renegotiating, or has a right (or has asserted a right) pursuant to the terms of any Material Contract to renegotiate, any amount paid or payable to any Acquired Company under any Material Contract or any other material term or provision of any Material Contract.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Esports Entertainment Group, Inc.), Stock Purchase Agreement (Esports Entertainment Group, Inc.)
Material Contracts. (a) For purposes Except (x) as set forth in Section 3.16(a) of the Transferor Disclosure Letter and (y) the Company Leases, neither the Company nor any Company Subsidiary is a party to or bound by any contract that, as of the date of this Agreement: (i) obligates the Company or any Company Subsidiary to make non- contingent aggregate annual expenditures (other than principal and/or interest payments or the deposit of other reserves with respect to debt obligations) in excess of $5,000,000, “Material Contract” shall mean except for (A) any Company Lease pursuant to which any third party is a lessee or sublessee on any Company Property or (B) any agreement entered into in connection with any capital expenditure project set forth in the following budget previously provided to Transferee Parent by the Company; (ii) contains any non-compete or exclusivity provisions with respect to any line of business or geographic area that restricts the business of the Company or any Company Subsidiary, or that otherwise restricts the lines of business conducted by the Company or any Company Subsidiary or the geographic area in which the Company or any Company Subsidiary is a party or any of their assets are bound:
(i) any “material contract” (as such term is defined may conduct business, except for radius restrictions that may be contained in Item 601(b)(10) of Regulation S-K of the Securities Act), whether or not filed by the Company with the Commission;
(ii) any employment or consulting contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000;
(iii) any contract providing for indemnification or any guaranty by the Company, in each case that is material to the Company, other than any contract providing for indemnification of customers or other Persons pursuant to contracts Leases entered into in the ordinary course of business;
(iv) ; provided that any contract that purports is terminable upon not more than thirty (30) days’ notice shall not constitute a Company Material Contract pursuant to limit in any material respect the right this Section 3.16(a)(ii); (iii) (A) is an agreement (other than an Organizational Document of the Company or a Company Subsidiary) that obligates the Company or any Company Subsidiary to indemnify
(xA) requires the Company or any Company Subsidiary to engage dispose of or acquire assets or properties (other than in connection with the expiration of a Company Lease pursuant to which any line of businessthird party is a lessee or sublessee on any Company Property), (B) gives any Person the right to buy any Company Property, (C) involves any pending or contemplated merger, consolidation or similar business combination transaction or (yD) grants any buy/sell right, put option, call option, redemption right, option to compete with purchase, marketing right, forced sale, tag or drag right, right of first offer, right of first refusal or right that is similar to any of the foregoing, pursuant to the terms of which the Company or any Company Subsidiary could be required to purchase or sell the equity interests or assets of any Person or operate in any geographical location;
real property or any other material assets, rights or the Company Properties; (vvi) constitutes a joint venture or partnership agreement between the Company or any contract relating Company Subsidiary, on the one hand, and any third party, on the other hand; (vii) constitutes a loan to the disposition or acquisition, directly or indirectly any Person (by merger or otherwise), other than a wholly owned Company Subsidiary) by the Company of assets or any Company Subsidiary (other than advances or rent relief made in connection with or pursuant to the Company Leases or pursuant to any disbursement agreement, development agreement or development addendum entered into in connection with a fair market value Company Lease with respect to the development, construction or equipping of the Company Properties or the funding of improvements to the Company Properties) in an amount in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product 5,000,000; or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture constitutes a Third-Party Property Management Agreement or similar contract that is material to the Company;
a Material Company Lease; (ix) constitutes a license granted to the Company or any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating Company Subsidiary with respect to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, Intellectual Property Rights (other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract licenses for off-the-shelf software with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess an annual fee of less than $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IP50,000).
(b) Each contract in any of the categories set forth in Section 3.16(a)(i) through Section 3.16(a)(ix) to which the Company or any Company Subsidiary is a party or by which it is bound as of the date of this Agreement is referred to herein as a “Company Material Contract”. For the avoidance of doubt, the term “Company Material Contract” does not include any Company Leases, other than Material Company Leases. (c)
(i) All Neither the Company nor any Company Subsidiary is in (or has received any written claim of) breach of or default under the terms of any Company Material Contracts are valid and binding on Contract, and, to the Knowledge of Transferor, no event has occurred that with notice or lapse of time or both would constitute a breach or default thereunder by the Company or its Subsidiariesany Company Subsidiary, enforceable against it in accordance with its termseach case, and are except as would not, individually or in full force and effectthe aggregate, subject reasonably be expected to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policyhave a Company Material Adverse Effect, (ii) neither the Company or any Subsidiary nor, to the knowledge Knowledge of the CompanyTransferor, no other party to any third party Company Material Contract is in violation breach of or default under the terms of any provision ofCompany Material Contract where such breach or default would, individually or failed in the aggregate, reasonably be expected to perform any obligation required under the provisions of, any have a Company Material Contract, except as disclosed in Schedule 3.13 Adverse Effect and (iii) neither as of the date of this Agreement, each Company Material Contract is a valid and binding agreement of the Company or any Subsidiary nora Company Subsidiary, as applicable, and, to the knowledge Knowledge of Transferor, the Company, any third party, is in breach, or has received written notice of material breach, of any Material Contract, except as disclosed in Schedule 3.13.other parties thereto and
Appears in 2 contracts
Sources: Contribution Agreement (Sachem Capital Corp.), Contribution Agreement (Sachem Capital Corp.)
Material Contracts. (a) For purposes of Except for (A) this Agreement, “Material Contract” shall mean the following (B) any Contracts to which the Company or any Company Subsidiary is a party as of the date of this Agreement filed as exhibits to the Company SEC Reports, (C) as set forth in Section 4.15(a) of the Company Disclosure Letter or (D) the Stock Incentive Plans (collectively, the “Material Contracts”), as of the date of this Agreement, none of the Company or any of their assets are boundCompany Subsidiary is a party to or bound by:
(i) contains covenants binding upon the Company or any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act), whether or not filed by Company Subsidiaries that materially restrict the ability of the Company or any of the Company Subsidiaries to engage in any business or compete in any business or with the Commissionany person or operate in any geographic area;
(ii) any employment or consulting contract (in each case other than with respect to which any partnership that is wholly owned by the Company has continuing obligations as of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000;
(iii) any contract providing for indemnification or any guaranty by the Companyof its wholly owned Subsidiaries, in each case that is material to the Companya joint venture, other than any contract providing for indemnification of customers partnership or other Persons pursuant to contracts entered into in the ordinary course of business;
(iv) any contract that purports to limit in any material respect the right of the Company (x) to engage in any line of business, similar agreement or (y) to compete with any Person or operate in any geographical location;
(v) any contract arrangement relating to the disposition formation, creation, operation, management or acquisition, directly or indirectly (by merger or otherwise), by the Company control of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or other similar contract arrangement, in each case, that is material to the Companybusiness of the Company and its Subsidiaries, taken as a whole;
(ixiii) any mortgagesis an indenture, indenturescredit agreement, guarantees, loans or credit agreementsloan agreement, security agreements agreement, guarantee, bond, mortgage or other contracts, in each case relating similar Contract pursuant to which any indebtedness for borrowed money, whether as borrower of the Company or lenderany of the Company Subsidiaries, in each case in excess of $250,0003,000,000, is outstanding or secured, other than accounts receivables any such Contract between or among any of the Company and payablesany of its wholly owned Subsidiaries;
(iv) prohibits the payment of dividends or distributions in respect of the capital stock of the Company or any of the Company Subsidiaries or prohibits the pledging of the capital stock of the Company or any Company Subsidiary;
(v) has resulted in payments to or from the Company or Company Subsidiaries of more than $5,000,000 in the aggregate for the prior fiscal year, except for the Contracts set out under the other subsections of this Section 4.15(a);
(vi) is a settlement, conciliation, or similar Contract with any Governmental Authority pursuant to which the Company or any of the Company Subsidiaries has continuing obligations that materially restrict the operations of the Company or such Subsidiary or that involve the payment of more than $3,000,000 after the date of this Agreement;
(vii) is a collective bargaining Contract or other Contract with any labor union, works council, labor organization, or any other similar organization of any Company Employees (each, a “CBA”);
(viii) requires the Company or any of the Company Subsidiaries, directly or indirectly, to make any advance, loan, extension of credit or capital contribution to, or other investment in, any person (other than the Company or any of its wholly owned Subsidiaries) in any such case which is in excess of $2,000,000;
(ix) is a loan or other Contract between the Company or any of the Company Subsidiaries, on the one hand, and any director, member of senior management (Vice President and above), major Shareholder or any other related person (as defined under Item 404(a) of Regulation S-K) promulgated pursuant to the Securities Act) of the Company, on the other hand, including such loan or Contract that is required to be reported under Item 7 of Form 20-F of the SEC, other than (A) in relation to payment of salary or fees for services rendered in the capacity of an officer, director or employee of the Company or any of the Company Subsidiaries, (B) in relation to reimbursement for expenses incurred on behalf of the Company or any of the Company Subsidiaries, (C) in relation to other employee benefits, including award agreements, notices of grants and other similar documents under the Stock Incentive Plans and (D) such loans and Contracts that involve the payment to any director or member of senior management (Vice President and above) of no more than $500,000 in the aggregate;
(x) is between the Company or any employee collective bargaining agreement or of the Company Subsidiaries, on the one hand, and a Governmental Authority, on the other contract hand, with any labor uniona transaction amount of more than $3,000,000;
(xi) any other contract under which requires or permits the Company is obligated or any of the Company Subsidiaries, or any successor to, or acquirer of the Company or any of the Company Subsidiaries, to make any payment to another person or to give notice to or obtain consent from another person, or gives another person a right to receive or elect to receive any payment or incur costs terminate or materially amend or modify any Contract between the Company or any of the Company Subsidiaries and such person, in excess each case as a result of $250,000 in a change of control of the Company or any year and which is not otherwise described in clauses (i)–(x) aboveof the Company Subsidiaries, the Amalgamation or other Transactions;
(xii) is a Contract relating to or in connection with the employment by the Company or any contract of the Company Subsidiaries of independent sales representatives under which the Company or any of the Company Subsidiaries undertakes, agrees or commits to or is not otherwise described required or obligated, whether contractually or by operation of any applicable Law, to assume any payments, obligations or other liabilities (whether outstanding or contingent) of such representatives’ prior employer in clauses (i)-(xi) above that is material connection with any actions or inactions of such employer or other matters with respect to the Companyindependent sales representatives so employed (in each case with respect to the period prior to such employment);
(xiii) (A) is a Contract involving license or rental of venues for exhibitions from any third party or imposing any other similar obligations on the Company or any of the Company Subsidiaries, (B) is a Contract pursuant to which the Company or any of the Company Subsidiaries (as a lessor) has a right to receive lease payments for office premises owned by the Company or such Subsidiary from any third party (as a lessee) or (C) a Material Lease; or
(xiiixiv) any contract relating whether or not made in the ordinary course of business, the absence of which would reasonably be expected to material have a Company IPMaterial Adverse Effect.
(b) Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) All of the each Material Contracts are Contract is valid and binding on the Company or its Subsidiaries, enforceable against it in accordance with its terms, a Company Subsidiary and are in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium the Bankruptcy and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, Equity Exception; (ii) neither the Company or any Subsidiary nor, to the knowledge as of the Companydate of this Agreement, any third no party is in material breach or violation of any provision of, or failed to perform any obligation required under the provisions ofdefault under, any Material Contract, except as disclosed in Schedule 3.13 and ; (iii) neither the Company or and the Company Subsidiaries have not received any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or has received written notice claim of material breach, of default under any Material Contract; and (iv) the Company has not received, except as disclosed of the date of this Agreement, any notice in Schedule 3.13writing from any person that such person intends to terminate any Material Contract.
Appears in 2 contracts
Sources: Amalgamation Agreement, Amalgamation Agreement (Global Sources LTD /Bermuda)
Material Contracts. (a) For purposes Section 4.11 of this Agreementthe Company Disclosure Letter sets forth a true and complete list, “Material Contract” shall mean as of the date hereof, of all Contracts of the following types to which the Company or any Company Subsidiary is a party or to which any of their respective assets or property are bound:
(a) any Contract pursuant to which the Company or any Company Subsidiary has provided funds to or made any loan, capital contribution or other investment in, or assumed any liability or obligation of, any Person, including take-or-pay contracts or keepwell agreements;
(b) any Contract with any Governmental Authority (other than any Statutory Plans) that involves an aggregate future or potential liability or payable, as the case may be, in excess of $350,000 or is otherwise material;
(c) any Contract with any Related Person of the Company (other than any Company Plans or Statutory Plans);
(d) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” that the Company would reasonably expect to prevent or delay the consummation of the transactions contemplated by this Agreement;
(e) any Contract pursuant to which the Company is the lessee or lessor of, or holds, uses, or makes available for use to any Person (other than the Company), (i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act)real property, whether or not filed by the Company with the Commission;
(ii) any employment tangible personal property and, in the case of clause (ii) that involves an aggregate future or consulting contract (in each potential liability or receivable, as the case with respect to which the Company has continuing obligations as of the date hereof) with any current or former (x) executive officer of the Companymay be, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000100,000;
(iiif) any contract Contract providing for indemnification or any guaranty by the CompanyCompany or any Subsidiary thereof, in each case that is material to the CompanyCompany and its Subsidiaries, taken as a whole, other than (A) any contract guaranty by the Company or a Subsidiary thereof of any of the obligations of (1) the Company or another wholly owned Subsidiary thereof or (2) any Subsidiary (other than a wholly owned Subsidiary) of the Company that was entered into in the Ordinary Course of Business pursuant to or in connection with a customer Contract, or (B) any Contract providing for indemnification of customers or other Persons pursuant to contracts Contracts entered into in the ordinary course Ordinary Course of businessBusiness;
(ivg) any contract that purports to limit in any material respect the right of the Company (x) to engage in any line of business, or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value in excess of $250,000;
(vi) any contract Contract that contains any provision that requires the purchase of all or a majority of the Company’s or any of its Subsidiaries’ requirements for a given product or service from a given third party, which product or service is material to the CompanyCompany and its Subsidiaries, taken as a whole;
(viih) any contract Contract relating to settlement or other final disposition of any Action since January 1, 2020;
(i) any Contract that results in any Person holding a power of attorney from the Company or any of its Subsidiaries that relates to the Company, any of its Subsidiaries or their respective business other than in the Ordinary Course of Business;
(j) any Contract for the purchase of any debt or equity security or other ownership interest of any Person, or for the issuance of any debt or equity security or other ownership interest, or the conversion of any obligation, instrument or security into debt or equity securities or other ownership interests of, the Company or any Company Subsidiary;
(k) any hedging, futures, options or other derivative Contract;
(l) any mortgages, indentures, guarantees, loans, or credit agreements, security agreements, or other Contracts, in each case evidencing Indebtedness of the Company or any Company Subsidiary (other than any Company Plans or Statutory Plans, in each case, that provide severance or other termination-related payments);
(m) any partnership, joint venture, limited liability company agreement or similar Contract relating to the formation, creation, operation, management, or control of any material joint venture, partnership, or limited liability company (other than any Organizational Documents of the Company or the Company Subsidiaries);
(n) any Contract that purports to materially limit or restrict the rights of the Company or any of its Subsidiaries (or, at any time after the consummation of the First Merger or Second Merger, Parent or any of its Subsidiaries) (A) to engage in any line of business, (B) compete with any Person or solicit any client or customer, or (C) operate in any geographical location;
(o) any Contract that grants any right of first refusal, right of first offer, or similar right with respect to any material assets, rights, or properties of the Company or any of its Subsidiaries;
(p) any Contract that obligates the Company or any of its Subsidiaries to conduct business on an exclusive or preferential basis or that contains a “most favored nation” or similar covenant with any third party or upon consummation of the First Merger or Second Merger will obligate Parent or any of its Subsidiaries to conduct business on an exclusive or preferential basis or that contains a “most favored nation” or similar covenant with any third party;
(viiiq) any partnership, joint venture Contract that obligates the Company or similar contract that is material any of its Subsidiaries to the Company;
(ix) make any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, capital expenditures in each case relating to indebtedness for borrowed money, whether as borrower or lender, any twelve month period in each case an amount in excess of $250,000100,000 (other than purchasing activities in the Ordinary Course of Business);
(r) any Contract relating to the future acquisition or disposition, directly or indirectly (by merger, sale of stock, sale of assets, or otherwise), by the Company or any of its Subsidiaries of material operating assets (other than purchasing activities or inventory sales in the Ordinary Course of Business) or capital stock or other equity interest of another Person (other than the Company or a Company Subsidiary), other than accounts receivables and payables;
(xi) any employee collective bargaining agreement acquisitions pursuant to budgeted capital expenditures in the Ordinary Course of Business or other contract with any labor union;
(xiii) any other contract under which the Company is obligated to make payment acquisitions or incur costs dispositions that do not individually have a value in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above500,000;
(xiis) any contract which is not otherwise described Collective Bargaining Agreement;
(t) any employment, severance, retention, change in clauses control, bonus or other Contract with any current or former Service Provider (i)-(xi1) above that is material provides for payment of any cash or other compensation or benefits in connection with the consummation of the transactions contemplated by this Agreement, other than any severance or termination payments and benefits, or (2) that expressly provides for the payment of severance or termination payments (other than (x) statutory severance benefits or termination payments or (y) only with respect to international offer letters or employment contracts, payments or benefits in lieu of notice) upon a termination of the Companyapplicable Service Provider’s employment;
(u) any IP Licenses; or
(xiiiv) any contract relating other Contract, other than purchase orders entered into in the Ordinary Course of Business, Company Plans and Statutory Plans, that by its terms calls for aggregate payments or receipts by the Company and its Subsidiaries under such Contract of more than $100,000 over any twelve month period. Collectively, the Contracts that are required to material Company IP.
(b) (i) All be listed on Section 4.11 of the Company Disclosure Letter are referred to herein as the “Material Contracts Contracts”. Except as set forth on Section 4.11 of the Company Disclosure Letter, the Company and its Subsidiaries are not party to or bound by any Material Contracts. The Company has made available to Parent correct and complete copies of all Company Material Contracts, including any amendments thereto. Each Material Contract is, subject to the Equitable Exceptions, valid and binding on the Company or and/or its Subsidiaries, enforceable against it in accordance with its termsas applicable, and are to the Company’s Knowledge, each other party thereto and is in full force and effecteffect and will continue to be in full force and effect on identical terms immediately following the Closing Date. Neither the Company, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the any Company or any Subsidiary nor, to the knowledge Knowledge of the Company, any third other party to any Material Contract is in breach or violation of any provision of, or failed default under, and there does not exist any event which, with the giving of notice or the lapse of time, would constitute a breach or default by the Company, any Company Subsidiary or, to perform the Knowledge of the Company, any obligation required under the provisions ofother party under, any Material Contract, in each case except for such breaches, defaults and events as disclosed to which requisite waivers or consents have been obtained or which would not, individually or in Schedule 3.13 the aggregate, reasonably be expected to be material to the Company and (iii) neither its Subsidiaries, taken as a whole, nor has the Company or any Subsidiary nor, to the knowledge of the Company, its Subsidiaries received any third party, is in claim of any such breach, violation or has received written notice of material breach, of any Material Contract, except as disclosed in Schedule 3.13default.
Appears in 2 contracts
Sources: Merger Agreement (Patterson Uti Energy Inc), Merger Agreement (Patterson Uti Energy Inc)
Material Contracts. (a) For purposes Except as set forth in Section 3.18 (a) of this Agreementthe Disclosure Schedule, “Material Contract” shall mean none of the following to which the Company or any Subsidiary Group Companies is a party to or bound by any Contract (which, in the aggregate, is required to be listed in Section 3.18 (a) of their assets are bound:the Disclosure Schedule, being a "Material Contract"):
(i) Any contract with respect to any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act)broker, whether distributor, trader, manufacturer's representative, franchise, agency, continuing sales or not filed by the Company with the Commissionpurchase, promotion, market research, marketing, consulting or advertising;
(ii) any employment Any contract relating to indebtedness, guarantee or consulting contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000mortgage;
(iii) any Any contract providing for indemnification under which the Target Company or any guaranty by of its Subsidiaries provides funds to any Person, or makes any loan, capital contribution or other investment, or undertakes any liability or obligation;
(iv) Any contract with any Governmental Authority;
(v) Any contract with any Affiliated Person of the Company, in each case that is material to the CompanyTarget Company or any of its Subsidiaries;
(vi) Any employment or consultancy Contract, other than employment Contracts covered under paragraph (v), involving in the aggregate future or potential liability in excess of RMB200,000;
(vii) Any contract that limits or purports to limit the ability of the Target Company or any of its Subsidiaries to compete in any line of business or with any Person or in any geographical area or during any period of time, or the right of a Group Companies to sell or purchase from or engage any Person, or grants to the other Party or any third party "most favored nation" status or special discounts of any type;
(viii) Any contract providing that requires a consent or otherwise contains a provision relating to a "change of control" or would prohibit or delay the consummation of the transactions contemplated by this Agreement or the Ancillary Documents;
(ix) The leasing or leasing by the Target Company or any of its Subsidiaries, or the holding, use or provision for the use by any Person (other than the Target Company or any of its Subsidiaries) of (A) any real properties or (B) any tangible personal properties which involve, under clause (C), future or potential liabilities or accounts receivable in excess of the aggregate amount of RMB200,000;
(x) Any contract for the sale and purchase of real properties or tangible personal properties with a value in excess of RMB200,000;
(xi) Any contract giving or claiming indemnification from any Person in respect of customers any liability in respect of any present or former business of the Target Company, any of its Subsidiaries or any predecessor Persons;
(xii) Any contract relating, in whole or in part, to any Intellectual Property rights;
(xiii) Any contract relating to a joint venture, partnership, merger, assets or stock purchase or divestiture relating to the Target Company or any of its Subsidiaries;
(xiv) Any hedging, futures, options or other Persons pursuant derivative contracts;
(xv) Any contract to contracts entered purchase any debt or equity securities or other ownership interest of any Person or to issue or convert any obligation, instrument or security into debt or equity securities or other ownership interest of the Target Company or any of its Subsidiaries;
(xvi) Any settlement contract relating to any administrative or judicial proceedings in the past five years;
(xvii) Any contract that results in any Person holding a power of attorney relating to the Target Company or any of its Subsidiaries or any of their respective businesses in the Target Company or any of its Subsidiaries; and
(xviii) Any other contract whether or not made in the ordinary course of business;
, if (ivA) any contract that purports to limit in any material respect involves future or potential liabilities or accounts receivable (as the right of the Company (xcase may be) to engage in any line of business, or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value in excess of $250,000;
RMB200,000 per annum or RMB400,000 during the current contract term; (viB) any contract that contains any provision that requires has terms in excess of one year and cannot be cancelled by the purchase Target Company or its Subsidiaries without payment of all of the Company’s requirements for a given product penalty or service from a given third party, which product further payment and without 30 days' notice; or service (C) is material to the Company;
(vii) any contract that obligates business, operations, assets, financial condition, results of operations or prospects of the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether Group Companies taken as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IPa whole.
(b) (i) All of the Each Material Contracts are valid Contract is a legal, valid, binding and binding on the Company or its Subsidiariesenforceable agreement, enforceable against it in accordance with its terms, and are is in full force and effect, subject to laws and, except as set forth in Section 3.18 (B) of general application relating to bankruptcythe Disclosure Schedule, insolvency, fraudulent transfer, reorganization, moratorium will continue in full force and similar laws relating to or affecting creditors’ rights generally and rules effect on identical terms immediately following the Closing Date. None of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the Target Company or any Subsidiary norof its Subsidiaries, or to the knowledge Knowledge of the CompanySellers, any third party other party, is in breach or violation (with or without notice or lapse of any provision of, time or failed to perform any obligation required both) in default under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither nor has the Target Company or any Subsidiary norof its Subsidiaries received any claim relating to such breach, violation or default. The Sellers have delivered or made available to the knowledge Buyer true and complete copies of the Companyall Material Contracts, including any third party, is in breach, or has received written notice of material breach, of any Material Contract, except as disclosed in Schedule 3.13amendments thereto.
Appears in 2 contracts
Sources: Share Purchase Agreement (Hainan Oriental Jiechuang Investment Partnership (Limited Partnership)), Share Purchase Agreement (Aesthetic Medical International Holdings Group LTD)
Material Contracts. (a) For purposes of Except for this Agreement, “Material Contract” shall mean the following to which the Company Benefit Plans, agreements filed as exhibits to the Company SEC Documents or as set forth on the applicable subsection of Section 3.18(a) of the Company Disclosure Schedule, as of the date hereof, neither Company nor any Subsidiary of its Subsidiaries is a party to or any of their assets are boundbound by:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities ActSEC), whether or not filed by the Company with the Commission;
(ii) any employment Contract that (A) imposes any restriction on the right or consulting contract (ability of Company or any of its Subsidiaries to compete with any other person or in each case with respect to which the Company has continuing obligations as any geographic area or acquire or dispose of the date hereof) with any current or former (x) executive officer securities of the Company, (y) member of the Board of Directorsanother person, or (zB) contains an exclusivity or other clause that restricts the operations of the business of Company employee providing for an annual base salary and its Subsidiaries in excess of $200,000a material manner;
(iii) any contract providing mortgage, credit agreement, note, debenture, indenture, security agreement, pledge, or other agreement or instrument evidencing indebtedness for indemnification borrowed money or any guaranty by guarantee of such indebtedness of Company or any of its Subsidiaries in an amount in excess of $5,000,000, except any transaction among Company and its wholly owned Subsidiaries or among Company’s wholly owned Subsidiaries;
(iv) any executory Contract that provides for the acquisition or disposition of assets, rights or properties with a value in excess of $5,000,000, except any transaction among Company and its wholly owned Subsidiaries or among Company’s wholly owned Subsidiaries;
(v) any material joint venture, in each case that is partnership or limited liability company agreement or other similar material Contract relating to the Companyformation, creation, operation, management or control of any material joint venture, partnership or limited liability company, other than any contract providing for indemnification such Contract solely between Company and its Subsidiaries or among Company’s Subsidiaries;
(vi) any Contract expressly limiting or restricting the ability of customers Company or any of its Subsidiaries to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other Persons pursuant equity interests, as the case may be;
(vii) any Contract that obligates Company or any of its Subsidiaries to contracts entered into make any loans, advances or capital contributions to, or investments in, any person other than (A) any loan or capital contribution to, or investment in, (x) Company or one of its Subsidiaries or (y) any person (other than an officer, director or employee of Company or any of its Subsidiaries unrelated to business travel and other business-related expenses in the ordinary course of business;
) that is less than $500,000 (ivwith respect to capital contributions and investments) any contract that purports or $100,000 (with respect to limit in any material respect the right of the Company (xloans) to engage such person, (B) extensions of credit to customers in any line the ordinary course of businessbusiness and consistent with customary trade terms, or (yC) to compete with advancement obligations under any Person indemnification agreement entered into by Company or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third partyits Subsidiaries;
(viii) any partnershipContract pursuant to which Company or any of its Subsidiaries made aggregate payments of more than $20,000,000 during the 12-month period ended December 31, joint venture 2019, except (x) for any such Contract that may be cancelled by Company or similar contract any of its Subsidiaries upon notice of 90 days or less or (y) for leases, subleases, licenses and occupancy agreements that is material relate to the CompanyCompany Leased Real Property;
(ix) any mortgagesContract pursuant to which Company or any of its Subsidiaries generated annual revenues of more than $40,000,000 during the 12-month period ended December 31, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables2019;
(x) any employee collective bargaining agreement Contract that includes any affiliate of Company as a counterparty or other contract with any labor unionthird party beneficiary and that would be required to be disclosed under Item 404 of Regulation S-K of the SEC;
(xi) any Contract that contains “earn out” or other contract under which contingent payment obligations, that are reasonably expected to result in payments after the date hereof by Company is obligated to make payment or incur costs any of its Subsidiaries in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above2,500,000;
(xii) any contract lease, sublease, license or occupancy agreement with respect to a Company Leased Real Property under which Company or any of its Subsidiaries is not otherwise described in clauses (i)-(xi) above that is material a lessee or sublessee and for which the annual base rental payments during the 12-month period ended December 31, 2019 exceeded $1,750,000, or by the terms of such lease or sublease, are reasonably expected to exceed $1,750,000 during the Companynext 12 months; orand
(xiii) any contract Contract relating to material Company IPIntellectual Property or a material Company IT Asset, excluding (A) non-exclusive licenses to commercially available software with annual expenditures of less than $1,000,000 or (B) non-exclusive rights granted to customers and others in the ordinary course of business.
(b) (i) All of the Material Contracts are valid and binding on the Company or its Subsidiaries, enforceable against it in accordance with its terms, and are in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the Company or any Subsidiary nor, to the knowledge of the Company, any third party is in violation of any provision of, or failed to perform any obligation required under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the Company or any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or has received written notice of material breach, of any Material Contract, except as disclosed in Schedule 3.13.
Appears in 2 contracts
Sources: Transaction Agreement (Delphi Technologies PLC), Transaction Agreement (Borgwarner Inc)
Material Contracts. (a) For purposes of Except for this Agreement, “Material Contract” shall mean Section 4.17 of the following Company Disclosure Letter contains a complete and correct list, as of the date hereof, of each Contract described in this Section 4.17(a) under which the Company or 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 to which any of their respective properties or assets are bound:is subject, in each case as of the date hereof, other than Company Benefit Plans listed on Section 4.10(a) of the Company Disclosure Letter (all Contracts of the type described in this Section 4.17(a), together with the IP Contracts (other than any IP Contract that is a Non-Scheduled License), whether or not set forth on Section 4.17 of the Company Disclosure Letter, being referred to herein as the “Material Contracts”):
(i) each Contract that limits the freedom of the Company, any Company Subsidiary or any of their respective affiliates (including Parent and its affiliates after the Effective Time) to compete or engage in any line of business or geographic region or with any Person or sell, supply or distribute any product or service related to Company Dry Electrode Technology or other line of business that is material to the Company, or that otherwise has the effect of restricting the Company, the Company Subsidiaries or affiliates (including Parent and its affiliates after the Effective Time) from the development, marketing or distribution of Company Dry Electrode Technology or any other Company Technology that is material to the business of the Company and its Subsidiaries, in each case, in any geographic area;
(ii) any joint venture, partnership, strategic alliance or limited liability company agreement (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries) or similar Contract;
(iii) each acquisition or divestiture Contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the receipt or making by the Company or any Company Subsidiary of future payments in excess of $500,000;
(iv) any Contract to provide or disclose Source Code that is included in any Company Technology to any Person, including any Contract to put such Source Code in escrow with a third party on behalf or for the benefit of any Person other than the Company or any Company Subsidiary;
(v) other than in the ordinary course of business consistent with past practice (including ordinary course commitments to purchase goods, products and off-the-shelf Technology), each Contract that gives any Person the right to acquire any assets of the Company or any Company Subsidiary after the date hereof with consideration of more than $500,000;
(vi) any settlement or similar Contract (A) with a Governmental Entity or (B) restricting in any material respect the operations or conduct of the Company or any Company Subsidiary or any of their respective affiliates (including Parent and its affiliates after the Effective Time);
(vii) each Contract (x) containing any future obligation that cannot be cancelled without penalty with ninety-day notice or (y) pursuant to which the Company or any Company Subsidiary is obligated to pay, or entitled to receive, payments in excess of $1,000,000 in the twelve (12)-month period following the date hereof;
(viii) any Contract not otherwise described in any other subsection of this Section 4.17(a) that obligates the Company or any Company Subsidiary to make any future capital investment or capital expenditure outside the ordinary course of business and in excess of $500,000;
(ix) each Contract pursuant to which the Company or any Company Subsidiary has agreed to assume or guarantee any liability of any Person or of the Company and the Company Subsidiaries, other than customary indemnity and warranty obligations provided in the ordinary course of business and where the aggregate and total liability of the Company under such Contract does not exceed at any point in time twelve months’ worth of the revenue received by the Company under such Contract prior to such point in time (if any);
(x) each Contract, excluding any purchase orders that do not contain material terms and have not been superseded by the Contract to which such purchase order relates, that is a (1) Material Customer Agreement, (2) Material Supplier Agreement, or (3) Material Reseller Agreement;
(xi) except where the exercise of any such right or imposition of such limitation does not relate to Company Dry Electrode Technology and has not otherwise been, and would not reasonably be expected to be, individually or in the aggregate, material to the Company and the Company Subsidiaries, taken as a whole, each Contract that grants any right of first refusal or right of first offer or that, other than with respect to non-exclusive licenses or other non-exclusive grants of rights to its products and services in, to or under Company Intellectual Property, 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;
(xii) each Contract that contains any exclusivity rights or “most favored nations” provisions or minimum use or supply requirements that are material in any respect to the Company or its affiliates (including Parent or its affiliates after the Effective Time);
(xiii) each Company Government Contract (A) with a Material Customer or (B) that is otherwise material to the Company and its Subsidiaries, taken as a whole;
(xiv) each Contract relating to outstanding or potential Indebtedness (or commitments in respect thereof) of the Company or the Company Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in an amount in excess of $500,000 including, without limitation, the Existing Credit Agreement and the Convertible Notes Indenture;
(xv) each Contract involving derivative financial instruments or arrangements (including swaps, caps, floors, futures, forward contracts and Non-Scheduled Licenses agreements) for which the aggregate exposure (or aggregate value) to the Company and the Company Subsidiaries is reasonably expected to be in excess of $500,000 or with a notional value in excess of $500,000;
(xvi) each Contract between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate (other than a wholly owned Company Subsidiary) of the Company or any Company Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract pursuant to which the Company or any Company Subsidiary has an obligation to indemnify such officer, director, affiliate, or family member;
(xvii) each Contract the performance of which requires any material commitment of research, development, engineering or manufacturing personnel or resources of the Company or any Company Subsidiary, which is not terminable at will by the Company upon 30 days or less prior notice;
(xviii) each Company Lease; and
(xix) any Contract not otherwise described in any other subsection of this Section 4.17(a) that would constitute a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act), whether or not filed by the Company with the Commission;
(iiSEC) any employment or consulting contract (in each case with respect to which the Company.
(b) True and in every material respect complete copies of each Material Contract in effect as of the date hereof has been made available to Parent or publicly filed with the SEC prior to the date hereof. Neither the Company nor any Company Subsidiary is in breach of or default under the terms of any Material Contract, except as has continuing obligations not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. To the Company’s Knowledge, as of the date hereof) with , no other party to any current Material Contract is in breach of or former (x) executive officer default under the terms of any Material Contract where such breach or default has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Material Contract is a valid, binding and enforceable obligation of the CompanyCompany or the Company Subsidiary which is party thereto and, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000;
(iii) any contract providing for indemnification or any guaranty by the Company, in each case that is material to the Company’s Knowledge, of each other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course of business;
(iv) any contract that purports to limit in any material respect the right of the Company (x) to engage in any line of business, or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IP.
(b) (i) All of the Material Contracts are valid and binding on the Company or its Subsidiaries, enforceable against it in accordance with its termsparty thereto, and are is in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the Company or any Subsidiary nor, to the knowledge of the Company, any third party is in violation of any provision of, or failed to perform any obligation required under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the Company or any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or has received written notice of material breach, of any Material Contract, except as disclosed in Schedule 3.13Enforceability Limitations.
Appears in 2 contracts
Sources: Merger Agreement (Tesla, Inc.), Merger Agreement (Maxwell Technologies Inc)
Material Contracts. (a) For purposes Except as set forth in Section 3.15(a) of the Company Disclosure Letter, as of the date of this Agreement, “Material Contract” shall mean the following to which neither the Company or nor any Subsidiary of its Subsidiaries is a party to, or bound by, any of their assets are bound:the following (each, a “Company Material Contract”):
(i) any Contract that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Exchange Act), whether or not filed by the Company with the Commission;
(ii) any employment Contract relating to Indebtedness for money borrowed or consulting contract a financial guaranty (in each case with respect to which other than between or among the Company has continuing obligations as of the date hereofand its Subsidiaries) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,0005,000,000;
(iii) any contract providing for indemnification joint venture, partnership or limited liability company agreements or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any joint venture, partnership or limited liability company, other than any such agreements or arrangements solely between or among the Company and/or its wholly-owned Subsidiaries;
(iv) any collective bargaining agreement or other material Contract to or with any labor union or other employee representative of a group of employees;
(v) any Contract required to be disclosed pursuant to Item 404 of Regulation S-K of the Exchange Act, other than any such Contract solely between or among the Company and/or its wholly owned Subsidiaries;
(vi) any Contract that (A) limits or restricts the Company or any guaranty by of its Subsidiaries (or would, from and after the CompanyEffective Time, limit or restrict Parent or any of its Affiliates) from competing in any line of business or with any Person or competing or operating in any market or geographic area, (B) contains exclusivity provision obligations binding on the Company or (C) grants any “most favored nation” or similar right in favor of any third party, and, in the case of each case of clauses (A) through (C), that is material to the CompanyCompany and its Subsidiaries, taken as a whole;
(vii) any Contract that is an acquisition agreement or divestiture agreement pursuant to which, (A) the Company reasonably expects that it will be required to pay total consideration (including assumption of debt) after the date of this Agreement in excess of $5,000,000, or (B) any other Person will have the right to acquire any assets of the Company or any of its Subsidiaries after the date of this Agreement (other than in the ordinary course of business) with a fair market value or purchase price in excess of $5,000,000;
(viii) any contract providing for indemnification of customers or other Persons Contract pursuant to contracts which the Company or any of its Subsidiaries has continuing “earn-out” or similar obligations that could result in payments in excess of $5,000,000 in the aggregate;
(ix) any Contract material to the Company pursuant to which (A) a third party grants the Company or any of its Subsidiaries a right to use any Intellectual Property material to the operation of the businesses conducted by the Company and its Subsidiaries or (B) the Company or any of its Subsidiaries grants to a third party the right to use any Owned Intellectual Property, but excluding, in either case, (x) any Contracts with customers entered into in the ordinary course of business;
(iv) any contract that purports to limit in any material respect the right of the Company (x) to engage in any line of business, or (y) employee nondisclosure agreements and employee Intellectual Property assignment agreements and (z) Contracts with respect to compete with any Person or operate in any geographical location;
(v) any contract relating to licenses for the disposition or acquisition, directly or indirectly (by merger or otherwise), by use of “off the Company of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract shelf” software that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements readily commercially available on a “click wrap” or other contracts, in each case relating to indebtedness similar basis for borrowed money, whether as borrower or lender, in each case in excess an annual fee of less than $250,000, other than accounts receivables and payables500,000;
(x) any employee collective bargaining agreement Contract entered into since April 29, 2018 involving any resolution or other contract with settlement of any labor unionactual or threatened Action involving the Company or any of its Subsidiaries involving (A) a payment in excess of $5,000,000 or (B) any material ongoing requirements or restrictions on the Company or any of its Subsidiaries;
(xi) any other contract under which material Contract between the Company is obligated to make payment or incur costs in excess any of $250,000 in any year its Subsidiaries and which is not otherwise described in clauses (i)–(x) abovea Governmental Authority;
(xii) any contract which is not otherwise described Contract that restricts the payment of dividends or distributions in clauses (i)-(xi) above that is material to respect of any capital stock or other equity interests of the CompanyCompany or any of its Subsidiaries; or
(xiii) any contract relating Contract the termination of which would reasonably be expected to be material to the Company IPand its Subsidiaries taken as a whole.
(b) As of the date of this Agreement, the Company has made available to Parent true, correct and complete copies of all Company Material Contracts.
(c) Except as set forth or described on Section 3.15(c) of the Company Disclosure Letter, (i) All neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any other party to a Company Material Contracts are Contract, is in material breach or violation of, or in material default under, any Company Material Contract, and no event has occurred that would result in a material breach or violation of, or a material default under, any Company Material Contract or cause or permit the termination, cancellation or acceleration of any material right or obligation under, any provision of any Company Material Contract (in each case, with or without notice, the lapse of time or both) by the Company or any of its Subsidiaries or, to the Knowledge of the Company, any other party thereto and (ii) each Company Material Contract is valid and binding on each of the Company or and its Subsidiaries, as applicable, and, to the Knowledge of the Company, each other party thereto and enforceable against it in accordance with its terms, and are in full force and effect, subject to laws of general application relating to applicable bankruptcy, insolvency, fraudulent transferconveyance, reorganization, rehabilitation, liquidation, preferential transfer, moratorium and similar laws relating to Laws now or hereafter affecting creditors’ rights generally and rules subject, as to enforceability, to general principles of law governing specific performance, injunctive relief equity (regardless of whether enforcement is sought in a proceeding at equity or other equitable remedieslaw), and is in full force and effect with respect to limitations each of public policy, (ii) neither the Company or any Subsidiary norand its Subsidiaries, as applicable and, to the knowledge Knowledge of the Company, any third each other party is thereto, in violation the case of any provision of, or failed to perform any obligation required under each of the provisions of, any Material Contractforegoing, except as disclosed in Schedule 3.13 and (iii) neither would not reasonably be expected to be material to the Company or and its Subsidiaries, taken as a whole. Neither the Company nor any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or its Subsidiaries has received written notice of from any other party to a Company Material Contract that such other party intends to terminate, not renew, or renegotiate in any material breach, respects the terms of any such Company Material Contract, Contract (except as disclosed in Schedule 3.13accordance with the terms thereof).
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Barnes & Noble Inc), Merger Agreement (Barnes & Noble Inc)
Material Contracts. (a) For purposes Except as set forth on Section 3.16(a) of this Agreementthe Company Disclosure Schedule, “Material Contract” shall mean as of the following date hereof, none of the Company or any of its Subsidiaries is a party to or bound by any:
(A) Contract relating to indebtedness for borrowed money or to mortgaging, pledging or otherwise placing a Lien on any material portion of their assets, (B) Contract relating to any factoring, supplier, trade or vendor financing or (C) Contract under which it has advanced or loaned any other Person (other than the Company or any of its Subsidiaries), in each case of the foregoing clauses (A) and (B), in an amount in excess of $500,000, and in case of the foregoing clause (C), in an amount in excess of $250,000;
(ii) guaranty of any financial obligation made on behalf of any Person other than the Company or any of its Subsidiaries or other guaranty, in each case, in an amount in excess of $250,000;
(iii) Contract with respect to any interest rate, currency or other swap or derivative transaction (other than those between the Company and its Subsidiaries);
(iv) Contract involving any resolution or settlement of any actual or threatened Proceeding against the Company or any of its Subsidiaries involving (A) a payment in excess of $1,000,000 and entered into within the last three (3) years or (B) any material ongoing requirements or restrictions on the Company or any of its Subsidiaries;
(v) Leased Real Property Leases and Landlord Leases;
(vi) lease or agreement under which the Company or any Subsidiary of its Subsidiaries is a party lessee or lessor of, or holds or operates any material personal property owned by any other party, or permits any Third Party to hold or operate any material personal property owned or controlled by the Company or any of their assets are bound:its Subsidiaries, in each case for which the annual rental exceeds $500,000;
(ivii) agreements (A) relating to any “pending or completed material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act)business combination, whether merger, acquisition or not filed divestiture or similar transaction by the Company with or any of its Subsidiaries within the Commissionlast three (3) years, (B) pursuant to which any of the Company or any of its Subsidiaries has remaining material obligations or liabilities relating to any completed material business combination, merger, acquisition or divestiture or similar transaction, or (C) giving any person the right to acquire any material equity interests, stock, assets or businesses of the Company or any of its Subsidiaries after the date hereof;
(iiviii) Contract concerning (A) the formation, creation, operation, management or control of any employment joint venture, partnership or consulting contract (in each case similar agreement or other similar arrangement with respect to which the Company has continuing obligations as of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, a Third Party or (zB) Company employee providing for an annual base salary the ownership of any equity interest in excess any entity or business other than the Subsidiaries of $200,000;
(iii) any contract providing for indemnification or any guaranty by the Company, in each case that is material to the Companybusiness of the Company and its Subsidiaries, taken as a whole;
(ix) Contract pursuant to which (A) the Company or any of its Subsidiaries are licensed or otherwise permitted by a Third Party to use any Intellectual Property material to the business of the Company and its Subsidiaries, taken as a whole (other than non-exclusive licenses of “shrink-wrap”, “click-wrap” and “off-the-shelf” software, and non-exclusive licenses of other software that is generally commercially available with one-time or aggregate annual license, maintenance, support and other fees of $500,000 or less per vendor) or (B) any contract Third Party is licensed or otherwise permitted to use any material Company Intellectual Property;
(x) Contract which (A) expressly limits or prohibits the Company or any of its Subsidiaries from competing or freely engaging in business anywhere in the world, (B) purports to restrict the ability of Parent or its Subsidiaries (including the Surviving Corporation and its Subsidiaries) following the Effective Time to compete in any line of business or (C) contains any right of first refusal, right of first negotiation or offer, “most favored nation,” exclusivity or similar covenants that would materially restrict future business activity of the Company or any of its Subsidiaries following the Effective Time, excluding customary back-solicitation provisions;
(xi) with respect to material Company Intellectual Property, any (A) Contract that limits the freedom or right of the Company or any of its Subsidiaries to use such Company Intellectual Property, (B) settlement Contract, consent-to-use or co-existence agreement or (C) Contract providing for indemnification the assignment, ownership, creation or development of customers such Company Intellectual Property (excluding employee and independent contractor agreements on the standard form of the Company or other Persons pursuant to contracts any of its Subsidiaries which are entered into in the ordinary course of business;
(iv) any contract that purports to limit in any material respect the right of the Company (x) to engage in any line of business, or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) Contract between any contract Governmental Entity and the Company or any of its Subsidiaries;
(xiii) collective bargaining agreement, neutrality agreement, card check agreement or any other Contract with any union, works council or other labor organization affecting any employee of the Company or any of its Subsidiaries;
(xiv) Contract between the Company or any of its Subsidiaries, on the one hand, and any director or officer of the Company or its Subsidiaries or any person beneficially owning 5% or more of the outstanding Shares, on the other hand (except for any Company Benefit Plan);
(xv) Contract with (A) each of the twenty (20) largest customers (measured by approximate dollar volume of sales by the Company and its Subsidiaries to such customers) of the Company and its Subsidiaries, in each case, for the 12‑month period ending March 31, 2022 and (B) suppliers of the Company and its Subsidiaries paid more than $1,800,000 for the 12-month period ending March 31, 2022;
(xvi) Contract which is not otherwise described restricts the payment of dividends or distributions in clauses (i)-(xi) above that is material to respect of any Equity Interests of the CompanyCompany and its Subsidiaries; or
(xiiixvii) other than customer Contracts entered into in the ordinary course, any contract relating to material Company IP.other Contract not covered by any other subsection hereof, which involves annual consideration in excess of $2,500,000;
(b) The Company has delivered or made available to Parent or its Representatives, including by filing as exhibits to Company SEC Documents, as applicable, true and correct copies in all material respects of all written Contracts that are required to be set forth on Section 3.16(a) of the Company Disclosure Schedule (collectively, the “Company Material Contracts”), together with all material amendments, waivers or other changes thereto (but subject, in each case, to redactions of pricing and other competitively sensitive information to the extent required by Antitrust Law).
(c) Except for those that have terminated or expired in accordance with their terms, and except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) All each of the Company and its Subsidiaries have performed the obligations required to be performed by it and is not in default under, in breach of, nor in receipt of any written claim of default or breach under, any Company Material Contract, (ii) no event has occurred which, with the passage of time or the giving of notice or both, would result in a default or breach by the Company or any of its Subsidiaries under any Company Material Contract and (iii) as of the date hereof, to the Knowledge of the Company, there is no breach or threatened breach by the other parties to any Company Material Contract. Except for those that have terminated or expired in accordance with their terms, and except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, all of the Company Material Contracts are valid and in full force and effect and constitute legal, valid and binding on obligations of the Company or its SubsidiariesSubsidiaries party thereto, and are enforceable against it the Company or its Subsidiaries party thereto in accordance with its terms, and are in full force and effect, subject to laws of general application relating to their respective terms (except as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent transferconveyance, reorganization, moratorium and other similar laws relating to or Laws affecting creditors’ rights generally and rules subject, as to enforceability, to general principles of law governing specific performanceequity), injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the Company or any Subsidiary norand, to the knowledge Knowledge of the Company, any third constitute legal, valid and binding obligations of the other party is or parties thereto, enforceable against such party or parties in violation of any provision of, or failed to perform any obligation required under the provisions of, any Material Contract, accordance with their respective terms (except as disclosed in Schedule 3.13 enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and (iii) neither the Company or any Subsidiary norother similar Laws affecting creditors’ rights generally and subject, as to enforceability, to the knowledge general principles of the Company, any third party, is in breach, or has received written notice of material breach, of any Material Contract, except as disclosed in Schedule 3.13equity).
Appears in 2 contracts
Sources: Merger Agreement (Usa Truck Inc), Merger Agreement (Usa Truck Inc)
Material Contracts. (a) For purposes of Except for this Agreement, “Material Contract” shall mean except for Contracts filed as exhibits to the following to which Company SEC Reports, or except as set forth in Section 3.17(a) of the Company Disclosure Schedule, none of the Company or any Subsidiary of its Subsidiaries is a party to or any of their assets are boundbound by:
(i) any Contract that would be required to be filed by the Company as a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities ActSEC), whether or not filed by the Company with the Commission;
(ii) any employment Contract relating to the purchase or consulting contract (in each case with respect to which sale of any Shares or other securities of the Company has continuing obligations as of the date hereof) with or any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000’s Subsidiaries;
(iii) any contract providing for indemnification Contract granting a right of first refusal, first offer or any guaranty by the Company, in each case that is material to the Company, other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course of businessfirst negotiation;
(iv) any contract that purports to limit in any material respect the right of the Company (x) to engage in any line of businessjoint venture contracts, strategic cooperation or partnership arrangements, or (y) to compete with any Person other agreements involving a sharing of profits, losses, costs or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), liabilities by the Company or any of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis its Subsidiaries with any third party;
(v) any Contract for the acquisition, sale or lease (including leases in connection with financing transactions) of material properties or assets of the Company or any of its Subsidiaries (by merger, purchase or sale of assets or shares or otherwise) entered into since January 1, 2010 or, if prior to that date, have representations, warranties or indemnities that remain in effect or as to which claims are pending;
(vi) any Contract involving the payment or receipt of amounts by the Company or its Subsidiaries of more than US$3,000,000, or relating to indebtedness for borrowed money or any financial guaranty of more than US$1,000,000;
(vii) any non-competition Contract or other Contract that purports to limit, curtail or restrict in any material respect the ability of the Company or any of its Subsidiaries to compete in any geographic area, industry or line of business or grants material exclusive rights to the counterparty thereto;
(viii) any partnershipContract 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, joint venture (B) pledging of share capital of the Company or similar contract that is material to any of its Subsidiaries or (C) issuance of guaranty by the CompanyCompany or any of its Subsidiaries;
(ix) any mortgagesContract which (A) provides the Company with effective control over any of its Subsidiaries in respect of which it does not, indenturesdirectly or indirectly, guaranteesown a majority of the equity interests (each, loans an “Operating Subsidiary”), (B) provides the Company or credit agreementsany of its Subsidiaries the right or option to purchase the equity interests in any Operating Subsidiary, security agreements or (C) transfers economic benefits from any Operating Subsidiary to any other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess Subsidiary of $250,000, other than accounts receivables and payablesthe Company;
(x) any employee collective bargaining agreement Contract between the Company or any of its Subsidiaries, on the one hand, and any director or executive officer of the Company or any Person beneficially owning five percent or more of the Shares (or their respective Affiliates), on the other contract with (other than any labor unionParent Related Party);
(xi) each Contract providing for any other contract under which earn-out payment payable by the Company is obligated or any of its Subsidiaries to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) abovethird party after the date hereof;
(xii) any contract which is not otherwise described Contract providing for any change of control or similar payments in clauses (i)-(xi) above that is material to the Companyexcess of $1,000,000; or
(xiii) any contract relating other Contracts, whether or not made in the ordinary course of business, the absence of which would reasonably be expected to material have, individually or in the aggregate, a Company IPMaterial Adverse Effect. Each such Contract described in clauses (i) to (xiii) above is referred to herein as a “Material Contract”.
(b) (i) All of Each Material Contract constitutes the Material Contracts are valid and legally binding on obligation of the Company or any of its Subsidiariesapplicable Subsidiaries party thereto and, to the Company’s knowledge, the other parties thereto, enforceable against it in accordance with its terms, subject to the Bankruptcy and are Equity Exception, and is in full force and effect. Except as would not reasonably be expected to have, subject to laws of general application relating to bankruptcyindividually or in the aggregate, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policya Company Material Adverse Effect, (iii) neither the Company or nor any Subsidiary of its applicable Subsidiaries nor, to the knowledge of the Company’s knowledge, any third other party thereto, is in breach or violation of any provision of, or failed default under, any Material Contract and (ii) no event has occurred or not occurred through the Company’s or any of its applicable Subsidiaries’ action or inaction or, to perform the Company’s knowledge, the action or inaction of any obligation required under the provisions third party, that, with or without due notice or lapse of time or both, would constitute a breach or violation of, or default under, any Material Contract.
(c) As of the date of this Agreement, except as disclosed in Schedule 3.13 and (iii) neither the Company and its Subsidiaries have not received any written claim or any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or has received written notice of material breachdefault, of termination or cancellation under any such Material Contract, except as disclosed in Schedule 3.13.
Appears in 2 contracts
Sources: Merger Agreement (Ren Jinsheng), Merger Agreement (Simcere Pharmaceutical Group)
Material Contracts. (a) For purposes Section 4.13(a) of this Agreementthe Company Disclosure Schedules sets forth a correct and complete list, as of the Execution Date, of the following Contracts to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound (collectively, the “Material Contract” shall mean the following to which the Company or any Subsidiary is a party or any of their assets are bound:Contracts”):
(i) any constitutes, or would be required to be filed by GXS Worldwide as, a “material contract” (as such term is defined in Item item 601(b)(10) of Regulation S-K of the Securities ActSEC), whether or not filed by the Company with the Commission;
(ii) any employment or consulting contract (in each case with respect Contract pursuant to which the Company has continuing obligations as of the date hereof) with Acquired Companies may be entitled to receive or obligated to pay more than $2,000,000 in any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000calendar year;
(iii) any contract providing for indemnification Contract that limits or purports to limit (or that following the Closing could limit) the ability of any Acquired Company, Parent, Merger Sub, Surviving Corporation or any guaranty by the Companyof Parent, Merger Sub or Surviving Corporation’s Affiliates to (A) compete in any line of business, with any Person, in each case any geographic area or during any period of time; or (B) any Contract that is material grants any exclusive rights, rights of first refusal, rights of first negotiation or similar rights to the Company, other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course of businessPerson;
(iv) any contract that purports Contract containing “most-favored-nation” terms whereby an Acquired Company would be required to limit in any material respect the right of the Company (x) provide preferential pricing or treatment to engage in any line of business, or (y) to compete with any Person or operate in any geographical locationsuch third party;
(v) any contract Contract relating to the disposition or acquisition, directly or indirectly (any future capital expenditures by merger or otherwise), by the an Acquired Company of assets with a fair market value in excess of $250,0001,000,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material Contract relating to the Companycreation, incurrence, assumption or guarantee of any Indebtedness;
(vii) any contract Contract that obligates relates to the Company acquisition or disposition of any business, a material amount of stock or assets of any Person or any property (whether by merger, sale of stock, sale of assets, license or otherwise), including any real property that was consummated within two (2) years prior to conduct business on an exclusive or preferential basis with any third partythe date of this Agreement;
(viii) any partnership, Contract that provides for (A) the establishment or operation of any joint venture or similar contract (B) the development of any Intellectual Property Rights that is are material to the CompanyBusiness which requires payment by an Acquired Company of more than $750,000;
(ix) any mortgages, indentures, guarantees, loans Contract involving any resolution or credit agreements, security agreements settlement of any actual or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case threatened Legal Proceeding with a value in excess of $250,000, 500,000 or that provides for any injunctive or other than accounts receivables and payablesnon-monetary relief;
(x) any employee collective bargaining agreement hedging, swap, derivative or other contract with any labor unionsimilar Contract;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) aboveLeases;
(xii) any contract Contract under which is not otherwise described in clauses (i)-(xi) above any Acquired Company has received or granted any right to use or exploit any Intellectual Property Rights that is are material to the Business, whether by way of a license, covenant not to ▇▇▇ or otherwise with a license fee of more than $1,000,000 annually (excluding (x) any off-the-shelf shrinkwrap, clickwrap or similar commercially available non-custom software licensed to an Acquired Company and (y) non-exclusive licenses granted by an Acquired Company to its customers in the ordinary course of business consistent with past practice for the use of the Acquired Company; or’s services);
(xiii) any contract relating to Contract that involves the colocation or outsourcing of any material operations or infrastructure of any Acquired Company;
(xiv) any labor or collective bargaining agreements, excluding statutory workers council, industry contracts or similar requirements in each case as required by Laws outside of the United States;
(xv) any Contract with a Major Customer or Major Supplier; and
(xvi) any Contract between or among an Acquired Company, on the one hand, and the Company IPor any Affiliate of the Company (other than an Acquired Company), on the other hand.
(b) (i) All The Company has made available to Parent and Merger Sub correct copies of each Material Contract as of the Execution Date (including all material amendments to the terms and conditions thereof, but not including supplements, annexes, work orders, change requests and schedules thereto). Each Material Contracts are valid and binding on the Company or its Subsidiaries, enforceable against it in accordance with its terms, and are Contract is in full force and effecteffect and is enforceable against an Acquired Company and, subject to laws of general application relating to the Company’s Knowledge, any other party thereto, except as may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and moratorium, fraudulent conveyance or other similar laws Laws relating to or affecting creditors’ rights generally and rules the availability of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the . No Acquired Company or any Subsidiary nor, to the knowledge Company’s Knowledge, any other party to any Material Contract is in material breach of or default under, or to the Company, ’s Knowledge has provided or received any third party is in violation written notice of any provision of, or failed intention to perform any obligation required under the provisions of, terminate any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the Company or any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or has received written notice of material breach, of any Material Contract, except as disclosed in Schedule 3.13.
Appears in 2 contracts
Sources: Merger Agreement (GXS Worldwide, Inc.), Merger Agreement (Open Text Corp)
Material Contracts. (a) For purposes Except for this Agreement, the Benefit Plans and agreements filed as exhibits to the Company SEC Documents, as of the date of this Agreement, “Material Contract” shall mean the following to which the neither Company or nor any Subsidiary of its Subsidiaries is a party to or any of their assets are boundbound by:
(i) any “"material contract” " (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities ActSEC), whether or not filed by the Company with the Commission;
(ii) any employment Contract that (A) expressly imposes any restriction on the right or consulting contract (in each case ability of Company or any of its Subsidiaries to compete with respect to which the Company has continuing obligations as any other person or acquire or dispose of the date hereof) with any current or former (x) executive officer securities of the Company, (y) member of the Board of Directors, another person or (zB) contains an exclusivity or "most favored nation" clause that restricts the business of Company employee providing for an annual base salary or any of its Subsidiaries in excess of $200,000a material manner, other than those contained in customary oil and gas leases or customary confidentiality agreements;
(iii) any contract providing mortgage, note, debenture, indenture, security agreement, guaranty, pledge or other agreement or instrument evidencing indebtedness for indemnification borrowed money or any guaranty by the guarantee of such indebtedness of Company or any of its Subsidiaries in an amount in excess of $100,000, except any transactions among Company and its wholly owned subsidiaries or among Company, in each case that is material to the Company, other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course of business’s wholly owned Subsidiaries;
(iv) any contract Contract that purports to limit in any material respect provides for the right acquisition, disposition, license, use, distribution or outsourcing of the Company (x) to engage in any line of businessassets, services, rights or properties with a value, or (y) to compete with any Person or operate requiring the payment of an annual amount by Company and its Subsidiaries, in any geographical locationexcess of $100,000;
(v) any contract joint venture, partnership or limited liability company agreement or other similar Contract relating to the disposition formation, creation, operation, management or acquisitioncontrol of any joint venture, directly partnership or indirectly (by merger limited liability company, other than any such Contract solely between Company and its Subsidiaries or otherwise)among Company’s Subsidiaries and other than any customary joint operating agreements, by unit agreements or participation agreements affecting the Company Oil and Gas Interests of assets with a fair market value in excess of $250,000Company;
(vi) any contract that contains Contract expressly limiting or restricting the ability of Company or any provision that requires of its Subsidiaries to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Companycase may be;
(vii) any contract Contract that obligates the Company or any of its Subsidiaries to conduct business on an exclusive make any loans, advances or preferential basis with capital contributions to, or investments in, any third partyperson other than (A) advances for expenses required under customary joint operating agreements and customary advances to operators of Oil and Gas Interests of Company not covered by a joint operating agreement or participation agreement or (B) any loan or capital contribution to, or investment in Company or one of its wholly owned Subsidiaries;
(viii) any partnership, Contract providing for the sale by Company or any of its Subsidiaries of Hydrocarbons that (A) has a remaining term of greater than 60 days and does not allow Company or such Subsidiary to terminate it without penalty on 60 days’ notice or less or (B) contains a "take-or-pay" clause or any similar material prepayment or forward sale arrangement or obligation (excluding "gas balancing" arrangements associated with customary joint venture operating agreements) to deliver Hydrocarbons at some future time without then or similar contract that is material to the Companythereafter receiving full payment therefor;
(ix) any mortgagesContract that provides for a call or option on production, indenturesor acreage dedication to a gathering, guarantees, loans or credit agreements, security agreements transportation or other contractsarrangement downstream of the wellhead, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case covering in excess of $250,000100 Mcf per day (or, other than accounts receivables and payablesin the case of liquids, in excess of 25 barrels of oil equivalent) of Hydrocarbons per day over a period of one month (calculated on a yearly average basis);
(x) any employee collective bargaining agreement Oil and Gas Lease that contains express provisions (A) establishing bonus obligations in excess of $5,000 that were not satisfied at the time of leasing or other contract with any labor unionsigning or (B) providing for a fixed term, even if there is still production in paying quantities;
(xi) any other contract under agreement pursuant to which the Company is obligated to make payment or incur costs any of its Subsidiaries has paid amounts associated with any Production Burden in excess of $250,000 25,000 during the immediately preceding fiscal year or with respect to which Company reasonably expects that it will make payments associated with any Production Burden in any year and which is not otherwise described in clauses (i)–(x) aboveof the next three succeeding fiscal years that could, based on current projections, exceed $25,000 per year;
(xii) any contract agreement which is not otherwise described a joint development agreement, exploration agreement or acreage dedication agreement (excluding, in clauses respect of each of the foregoing, customary joint operating agreements) that either (i)-(xiA) above that is material to the Company; oroperation of Company and its Subsidiaries, taken as a whole, or (B) would reasonably be expected to require Company and its Subsidiaries to make expenditures in excess of $25,000 in the aggregate during the 12-month period following the date hereof;
(xiii) any contract relating acquisition Contract that contains "earn out" or other contingent payment obligations, or remaining indemnity or similar obligations (other than asset retirement obligations, plugging and abandonment obligations and other reserves of Company set forth in the Company Reserve Reports that have been provided to Parent prior to the date of this Agreement), that would reasonably be expected to result in payments after the date hereof by Company or any of its Subsidiaries in excess of $50,000; or
(xiv) any material lease or sublease with respect to a Company IPLeased Real Property. All contracts of the types referred to in clauses (i) through (xiv) above are referred to herein as "Company Material Contracts."
(b) (i) All Neither Company nor any Subsidiary of Company is in breach of or default under the terms of any Company Material Contracts are Contract. To the knowledge of Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract. Each Company Material Contract is a valid and binding on the obligation of Company or its Subsidiariesthe Subsidiary of Company that is party thereto and, enforceable against it in accordance with its termsto the knowledge of Company, of each other party thereto, and are is in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the Company or any Subsidiary nor, to the knowledge of the Company, any third party is in violation of any provision of, or failed to perform any obligation required under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the Company or any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or has received written notice of material breach, of any Material Contract, except as disclosed in Schedule 3.13.
Appears in 2 contracts
Sources: Merger Agreement (Stratex Oil & Gas Holdings, Inc.), Merger Agreement (RICHFIELD OIL & GAS Co)
Material Contracts. (a) For purposes of Except for this Agreement, “Material Contract” shall mean as of the following to which date hereof, none of the Company or any Subsidiary its Subsidiaries is a party to or bound by any of their assets are boundContract:
(i) any that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities ActSEC), whether or not filed by the Company with the Commission;
(ii) any employment that materially limits, curtails or consulting contract restricts or purports to materially limit, curtail or restrict either (x) the type of business in each case with respect to which the Company has continuing obligations as or any of its Subsidiaries may engage or the date hereof) with locations in which any current of them may so engage in any business or former (x) executive officer of the Company, (y) member the ability of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000;
(iii) any contract providing for indemnification or any guaranty by of its Subsidiaries to hire or solicit for hire for employment any individual or group as would be material to the CompanyCompany and its Subsidiaries, taken as a whole, in each case that is material to the Company, other than any contract providing for indemnification of customers or other Persons pursuant to contracts this clause (ii) except for Government Contracts and teaming agreements entered into in the ordinary course of businessbusiness consistent with past practice;
(iviii) for any contract that purports to limit in any material respect the right of the Company (x) to engage in any line of businessjoint venture, partnership or similar arrangement, or (y) to compete with any Person Contract involving a sharing of revenues, profits, losses, costs, or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), liabilities by the Company or any of its Subsidiaries with any other Person, in each case pursuant to which the Company and its Subsidiaries would reasonably be expected to be obligated to contribute assets with a fair market value in excess of $250,0002,000,000 in any twelve month period, in each case excluding any teaming agreement entered into in the ordinary course of business consistent with past practice;
(iv) that is an indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other agreement providing for or guaranteeing indebtedness of any Person in excess of $2,000,000 or that becomes due and payable upon, or provides a right of termination or acceleration as a result of, the consummation of the Merger and the other Transactions, other than Contracts between or among the Company and any of its wholly owned Subsidiaries or between or among any such wholly owned Subsidiaries;
(v) that is a collective bargaining agreement;
(vi) that is (x)
(1) a long-term supply Contract that is not specific to the fulfillment of a customer Contract, (2) any contract Contract in respect of the needs of an individual division of the Company that contains any provision that requires is not specific to the purchase fulfillment of all customer Contracts, or (3) a Contract in respect of the needs of the Company’s requirements headquarters operations that is not specific to the fulfillment of a customer Contract that, in each case, involves or would reasonably be expected to involve aggregate payments by the Company and/or its Subsidiaries in excess of $5,000,000 in any twelve-month period, or (y) a Contract that is otherwise material to the business of the Company or any of its Subsidiaries, in the case of each of (x) and (y), other than (A) any Contract that may be cancelled without penalty or termination payments by the Company and/or its Subsidiaries upon notice of sixty (60) days or less, (B) any Government Contract or other customer Contract, (C) Contracts that support one or more Government Contract or other individual Contract with customers for which the Company is substantially fully reimbursed for such Contract pursuant to such Government Contract or Contract with such customer (such Contracts, “Direct Charge Contracts”), (D) any lease, sublease, rental or occupancy agreement, license, or other Contract that, in each case, provides for the ownership of, leasing of, title to, use of, or any leasehold or other interest in any real property, (E) Contracts relating to Benefit Plans, (F) Contracts relating to insurance policies or (G) Contracts with distributors or sales agents that are commission-based;
(vii) that, to the knowledge of the Company, includes an indemnification obligation of the Company or any of its Subsidiaries (including any obligations to advance funds for expenses), other than Contracts containing indemnification obligations which would not reasonably be expected to obligate the Company to pay in excess of $5,000,000;
(viii) is an acquisition agreement, asset purchase agreement, sale agreement, purchase agreement, stock purchase agreement, put agreement, call agreement or other similar agreement pursuant to which (A) the Company or any of its Subsidiaries would reasonably be expected to be obligated to pay total consideration including assumption of debt after the date of this Agreement in excess of $10,000,000, (B) any third party has the right to acquire any assets of the Company or any of its Subsidiaries with a given product fair market value or service from a given purchase price of more than $10,000,000, or (C) any third partyparty has the right to acquire any interests in the Company or any of its Subsidiaries, which product other than, in the case of clauses (A) and (B), acquisitions or service dispositions of inventory in the ordinary course of business consistent with past practice;
(ix) between the Company and its Subsidiaries, on the one hand, and the Company’s Affiliates (other than Subsidiaries of the Company) or other Persons, on the other hand, that would be required to be disclosed under Item 404 of Regulation S-K of the SEC;
(x) that would, or would reasonably be expected to, individually or in the aggregate, prevent, materially delay or materially impair the Company’s ability to consummate the Transactions;
(xi) that is material to the Company and its Subsidiaries, taken as a whole, and was not negotiated and entered into on an arm’s-length basis, other than agreements between the Company and its wholly-owned Subsidiaries or between wholly-owned Subsidiaries of the Company;
(viixii) that contains any contract that obligates standstill provision to which the Company to conduct business on an exclusive or preferential basis with any third partyof its Subsidiaries is subject or a beneficiary thereof;
(viiixiii) that contains any partnership, joint venture most favored nation provision or similar contract that preferential pricing terms, exclusivity or similar obligations to which the Company or any of its Subsidiaries is subject, which is material to the Company;
(ix) any mortgagesCompany and its Subsidiaries, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether taken as borrower or lender, in each case in excess of $250,000a whole, other than accounts receivables Government Contracts, teaming agreements and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company’s GSA Schedules; or
(xiiixiv) that limits or restricts the ability of the Company or any of its Subsidiaries (A) to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as applicable, (B) to make loans to the Company or any of its Subsidiaries or (C) to grant Liens on the property of the Company or any of its Subsidiaries. Each such contract relating described in Section 5.13(a) above, together with all Contracts filed as exhibits to material the Company IPReports is referred to herein as a “Material Contract.”
(b) (iSection 5.13(a) All of the Company Disclosure Letter sets forth a reasonably detailed description of each reason why each Contract listed therein is disclosed in response to the applicable subsection of Section 5.13(a) of the Company Disclosure Letter. Each of the Material Contracts are valid and is binding on the Company or its Subsidiaries, enforceable against it in accordance with its terms, and are in full force and effectas the case may be, subject to laws of general application relating to bankruptcythe Bankruptcy and Equity Exception, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the Company or any Subsidiary norand, to the knowledge of the Company, any third each other party thereto, in accordance with its terms and is in violation full force and effect, and each of any provision ofthe Company and each of its Subsidiaries (to the extent they are party thereto or bound thereby) and, or failed to perform any obligation the Company’s knowledge, each other party thereto has performed in all material respects all obligations required to be performed by it under the provisions of, any each Material Contract, except as disclosed in Schedule 3.13 and (iii) neither . Each of the Company and each of its Subsidiaries is not (with or without notice, lapse of time or both) in breach or default in any Subsidiary normaterial respect thereunder and, to the knowledge of the Company, no other party to any third partyMaterial Contract is (with or without notice, is lapse of time or both) in breachbreach or default in any material respect thereunder, or and neither the Company nor any of its Subsidiaries has received written notice of material breach, from the other party to any Material Contract of any intention to cancel, terminate, materially change the scope of rights and obligations under or not to renew such Material Contract, except as disclosed in Schedule 3.13.
Appears in 2 contracts
Sources: Merger Agreement (Harris Corp /De/), Merger Agreement (Exelis Inc.)
Material Contracts. (a) For purposes Except for this Agreement and the other Transaction Agreements, as of this Agreementthe date hereof, “Material Contract” shall mean the following to which the none of Company T or any Subsidiary its Subsidiaries is a party or to nor are any of their Company T's or its Subsidiaries' properties or assets are boundbound by:
(i) any “material contract” (as such term is defined in Contract that would be required to be filed or furnished by Company T pursuant to Item 601(b)(10) of Regulation S-K 19 and paragraph 4 of the Securities Instructions to Exhibits of Form 20-F under the Exchange Act), whether or not filed by the Company with the Commission;
(ii) any employment Contract granting a right of first refusal, first offer or consulting contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000first negotiation;
(iii) any contract providing for indemnification or any guaranty by the Company, in each case that is material Contract relating to the Companyformation, other than any contract providing for indemnification creation, operation, management or control of customers a partnership, joint venture, limited liability company or other Persons pursuant to contracts entered into in the ordinary course of businesssimilar arrangement;
(iv) any contract that purports to limit Contract for the acquisition, sale or lease (including leases in any connection with financing transactions) of material respect the right properties or assets of the Company T (x) to engage in any line by merger, purchase or sale of business, assets or (y) to compete with any Person stock or operate in any geographical locationotherwise);
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets Contract with a fair market value in excess of $250,000any Governmental Entity;
(vi) any contract that contains Contract involving the payment or receipt of amounts by Company T or its Subsidiaries, or relating to indebtedness for borrowed money or any provision that requires the purchase financial guaranty, of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Companymore than US$4,000,000;
(vii) any contract non-competition Contract or other Contract that obligates purports to limit, curtail or restrict in any material respect the ability of Company T or any of its Subsidiaries to conduct business on an exclusive compete in any geographic area, industry or preferential basis with any third partyline of business;
(viii) any partnershipContract that contains a put, joint venture call or similar contract that is material right pursuant to the Companywhich Company T or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any Person ;
(ix) any mortgagesContract that contains restrictions with respect to (A) payment of dividends or any distribution with respect to equity interests of Company T or any of its Subsidiaries, indentures, guarantees, loans (B) pledging of share capital of Company T or credit agreements, security agreements any of its Subsidiaries or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower (C) issuance of guaranty by Company T or lender, in each case in excess any of $250,000, other than accounts receivables and payables;its Subsidiaries; or
(x) any employee collective bargaining agreement or material Company T IP Agreements other contract with any labor union;
than agreements for Off-the-Shelf Software and UGC Agreements (xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise all such Contracts described in clauses (i)–(xi) above;
through (xii) x), and any contract which is not otherwise described in clauses (i)-(xi) above that is material to Company T VIE Contracts, collectively, the Company; or
(xiii) any contract relating to material "Company IPT Material Contracts").
(b) (i) All Each of the Company T Material Contracts are constitutes the valid and legally binding on the obligation of Company T or its Subsidiariesapplicable Subsidiary, enforceable against it in accordance with its terms, terms and are is in full force and effect. There is no material breach or default under any Company T Material Contract so listed either by Company T or, subject to laws of general application relating to bankruptcyCompany T's knowledge, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or by any other equitable remediesparty thereto, and to limitations no event has occurred that with the lapse of public policy, (ii) neither time or the giving of notice or both would constitute a default thereunder by Company or any Subsidiary norT or, to the knowledge of the CompanyCompany T's knowledge, any third other party. No party is in violation to any such Company T Material Contract has given notice to Company T of or made a claim against Company T with respect to any provision of, material breach or failed to perform any obligation required under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the Company or any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or has received written notice of material breach, of any Material Contract, except as disclosed in Schedule 3.13default thereunder.
Appears in 2 contracts
Sources: Merger Agreement (Youku Inc.), Merger Agreement (Tudou Holdings LTD)
Material Contracts. (a) For purposes Section 3.15(a) of this Agreement, “Material Contract” shall mean the Disclosure Letter lists the following types of Contracts to which the Company or any Company Subsidiary is a party or any of their respective assets are bound:bound (such Contracts as are required to be set forth in Section 3.15(a) of the Disclosure Letter being the “Material Contracts”):
(i) any each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of under the Securities Act), whether or not filed by ) with respect to the Company with and the CommissionCompany Subsidiaries;
(ii) all Contracts evidencing indebtedness for borrowed money, whether as borrower or lender;
(iii) all joint venture, partnership, strategic alliance and business acquisition or divestiture Contracts under which the Company or a Company Subsidiary has any employment material obligation;
(iv) all Contracts relating to issuances of securities of the Company or consulting contract any Company Subsidiary (other than the Company Stock Awards);
(v) all Contracts with any Governmental Authority to which the Company or any Company Subsidiary is a party and that are material to the business and operations of the Company and the Company Subsidiaries, taken as a whole;
(vi) all Contracts that materially limit, or purport to materially limit the ability of the Company or any Company Subsidiary to compete in any line of business or with any person or entity or in any geographic area or during any period of time;
(vii) all employment, consulting, change in control, “golden parachute,” severance or termination Contracts (in each case with respect to which the Company or any Company Subsidiary has continuing obligations as of the date hereof) with any current or former (x) executive officer of the CompanyCompany or any Company Subsidiary, (y) member of the Company Board or the board of Directors, directors of any Company Subsidiary or (z) Company employee providing for an annual base salary in excess of $200,000100,000;
(iiiviii) any contract all Contracts providing for indemnification or any guaranty by the CompanyCompany or any Company Subsidiary, in each case that is material to the CompanyCompany and the Company Subsidiaries, taken as a whole, other than any contract providing for indemnification guaranty by the Company or a Company Subsidiary of customers any of the obligations of the Company or other Persons pursuant to contracts entered into in the ordinary course of businessCompany Subsidiary;
(ivix) any contract that purports to limit in any material respect the right of the Company (x) to engage in any line of business, or (y) to compete with any Person or operate in any geographical location;
(v) any contract all Contracts relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company or any of the Company Subsidiaries after the date of this Agreement of assets with a fair market value in excess of $250,000;
(vix) all material Contracts that obligate the Company or any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product Company Subsidiaries to conduct business on an exclusive or service from a given preferential basis with any third partyparty or upon consummation of the Merger will obligate Parent, which product the Surviving Corporation or service is material to the Company;
(vii) any contract that obligates the Company of their respective subsidiaries to conduct business on an exclusive or preferential basis with any third party;
(viiixi) all Contracts that prohibit the payment of dividends or distributions in respect of the capital stock of the Company or any partnershipof the Company Subsidiaries, joint venture prohibit the pledging of the capital stock of the Company or similar contract that is material to any of the Company;Company Subsidiaries or prohibit the issuance of any guarantee by the Company or any of the Company Subsidiaries; and
(ixxii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or all other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract Contracts under which the Company or any of the Company Subsidiaries is obligated to make payment payments or incur costs in excess of $250,000 500,000 in any year and which is are not otherwise described in clauses (i)–(xi)–(xi) above;
(xii) . The Company has made available to Parent correct and complete copies of all Material Contracts, including any contract which is not otherwise amendments thereto. Except as expressly described in clauses Section 3.15(a), Material Contracts shall not include (i)-(xiA) above that is material to Insurance Contracts issued by any Company Subsidiary in the Company; or
ordinary course of business, (xiiiB) Reinsurance Contracts (whether assumed or ceded) entered into by a Company Subsidiary in the ordinary course of business, (C) Contracts between the Company or any contract relating to material Company IPSubsidiary, on one hand, and any broker, managing general underwriter or managing general agent, on the other hand, entered into in the ordinary course of business and (D) Contracts between the Cost Management Subsidiary and a recipient of, or consultant or employee for, medical and indemnity care cost management services, entered into in the ordinary course of business.
(b) Except as would not constitute a Material Adverse Effect or as set forth in Section 3.15(b) of the Disclosure Letter, (i) All of the each Material Contracts are Contract is a legal, valid and binding on agreement, in full force and effect and enforceable against the Company or its Subsidiaries, enforceable against it applicable Company Subsidiary in accordance with its terms, and are in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither none of the Company or any Company Subsidiary noror, to the knowledge of the Company, any third party has received any claim of default under or cancellation of any Material Contract and none of the Company or any Company Subsidiary is in breach or violation of any provision of, or failed to perform any obligation required under the provisions ofdefault under, any Material Contract, except as disclosed in Schedule 3.13 and ; (iii) to the Company’s knowledge, no other party is in breach or violation of, or default under, any Material Contract; and (iv) neither the execution of this Agreement nor the consummation of the Transactions shall constitute a default under, give rise to cancellation rights under, or otherwise adversely affect any of the material rights of the Company or any Company Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or has received written notice of material breach, of under any Material Contract, except as disclosed in Schedule 3.13.
Appears in 2 contracts
Sources: Merger Agreement (Enstar Group LTD), Merger Agreement (SeaBright Holdings, Inc.)
Material Contracts. (ai) For purposes of Except for this Agreement, “Material Contract” shall mean the following any Benefit Plans, any Contracts filed as exhibits to which the Company or Reports, and any Company Leases, as of the date hereof, neither the Company nor its Subsidiary is a party to any Contract (or any group of their assets are bound:related Contracts with the same party or an Affiliate of such party):
(iA) any that would be required to be filed by the Company as a “material contract” (as such term is defined in pursuant to Item 601(b)(10) of Regulation S-K of under the Securities Act;
(B) that purports to limit or otherwise restrict in any material respect the ability of the Company or its Subsidiary to compete in any business or geographic or therapeutic area (or that, following the Offer or the Merger, would by its terms apply such limits or other restrictions to Parent or its Subsidiaries);
(C) (x) containing any standstill, or similar agreement pursuant to which the Company or its Subsidiary has agreed not to acquire assets or securities of another Person, (y) containing a put, call, right of first refusal or similar right pursuant to which the Company or its Subsidiary could be required to purchase or sell, or otherwise acquire or transfer, as applicable, any equity interests of any Person or assets that have a fair market value or purchase price of more than $300,000 or (z) relating to the acquisition or disposition of any business or any material assets other than in the ordinary course of business consistent with past practice (whether by merger, sale of stock or not filed assets or otherwise);
(D) that would prevent, materially delay or materially impede the Company’s ability to consummate the Offer, the Merger or the other Transactions;
(E) that is between the Company or its Subsidiary and any of their respective directors or officers or any Person beneficially owning five percent (5%) or more of the outstanding Shares;
(F) that involves the payment or receipt by the Company with or its Subsidiary of royalties or other amounts of more than $300,000 in the Commissionaggregate calculated based on the revenues or income of the Company;
(iiG) (x) for the furnishing of services or the sale of products which involves, or would reasonably be expected in the future to involve, consideration in excess of $300,000 in any employment twelve (12) month period, (y) for the receipt of services by a third party or consulting contract for the purchase of raw materials, commodities, supplies, products, or other personal property, which involves payment by the Company of consideration in excess of $300,000 in any twelve (12) month period or which would reasonably be expected to involve payment by the Company of consideration in each case with respect excess of $300,000 in any future twelve (12) month period during the term of such agreement or (z) that provides for future payment obligations by the Company of either $300,000 or more related to clinical trials of Company Pharmaceutical Products;
(H) under which any the Company is a lessee of, or holds or uses, any equipment, machinery, vehicle or other tangible personal property owned by a third Person which requires future annual payments in excess of $300,000;
(I) pursuant to which the Company has continuing obligations as of the date hereof) entered into a partnership, joint venture, collaboration or other similar arrangement with any current Person other than the Subsidiary;
(J) for capital expenditures or former (x) executive officer the acquisition or construction of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary fixed assets which requires aggregate future payments in excess of $200,000300,000;
(iiiK) any contract providing for indemnification or any guaranty by the Company, in each case that is material to the Company, entered into other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course of business;
(iv) business pursuant to which the Company agrees not to make use of any contract that purports to limit material right in any material respect the right of the Company (x) to engage in any line of business, or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (Intellectual Property owned by merger or otherwise), by the Company of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(viiL) any contract that obligates pursuant to which the Company to conduct business on an exclusive has outstanding indebtedness, or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, provides a guarantee in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case a principal amount in excess of $250,000, other than accounts receivables and payables300,000;
(xM) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which requires future payments by the Company is obligated to make payment or incur costs in excess of $250,000 in 300,000 per annum containing “change of control” or similar provisions; or
(N) pursuant to which the Company or any year and which is not otherwise other party thereto has material continuing obligations, rights or interests relating to the distribution, supply, manufacture, marketing or co-promotion of, or collaboration with respect to any Company Pharmaceutical Product. Each such Contract described in clauses (i)–(xA) above;through (N) above (and those Contracts that would be Material Contracts but for the exception of being filed as exhibits to the Company Reports), but in any event excluding Benefit Plans and Company Leases, are referred to herein as a “Material Contract.”
(xiiii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IP.
(b) (i) All Each of the Material Contracts are is valid and binding on the Company or its SubsidiariesSubsidiary and, enforceable against it in accordance with its termsto the knowledge of the executive officers of the Company, each other party thereto and are is in full force and effect, subject except for such failures to laws of general application relating be valid and binding or to bankruptcybe in full force and effect that, insolvencyindividually or in the aggregate with other such failures, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedieshas not had, and would not reasonably be expected to limitations have, a Company Material Adverse Effect. None of public policythe Company, (ii) neither the Company or any its Subsidiary noror, to the knowledge of the Company, any third party is in violation of any provision of, or failed to perform any obligation required under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the Company or any Subsidiary nor, to the knowledge executive officers of the Company, any third other party, is in breach, or has received written notice of material breach, of default under any Material Contract, in each case except as disclosed for such defaults that, individually or in Schedule 3.13the aggregate with other such defaults, have not had, and would not reasonably be expected to have, a Company Material Adverse Effect.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Gilead Sciences Inc), Merger Agreement (Pharmasset Inc)
Material Contracts. (a) For purposes Schedule 4.16(a) of the Disclosure Schedules lists, as of the date hereof, each of the following contracts and agreements of the Company and its Subsidiaries (such contracts and agreements as described in this Agreement, Section 4.16(a) being “Material Contract” shall mean Contracts”):
(i) all contracts or agreements that provide for payment or receipt by the following Company or its Subsidiaries of more than $25,000 per year or which the Company or its subsidiaries cannot terminate without penalty on less than thirty (30) days’ notice;
(ii) all contracts and agreements relating to Indebtedness;
(iii) all contracts and agreements that limit or purport to limit the ability of the Company or its Subsidiaries to compete in any line of business or with any Person or in any geographic area or during any period of time;
(iv) all joint venture, partnership or similar agreements or arrangements;
(v) all contracts or agreements pursuant to which the Company or its Subsidiaries has granted any Subsidiary is a party exclusive or “most-favored’ rights to any of their assets are bound:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act), whether or not filed by the Company with the Commission;
(ii) any employment or consulting contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000;
(iii) any contract providing for indemnification or any guaranty by the Company, in each case that is material to the Company, other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course of business;
(iv) any contract that purports to limit in any material respect the right of the Company (x) to engage in any line of business, or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value in excess of $250,000third party;
(vi) all contracts or agreements relating to any contract that contains Encumbrance upon any provision that requires the purchase of all of the Company’s requirements for a given product assets or service from a given third party, which product properties o of the Company or service is material to the Companyits Subsidiaries;
(vii) any surety, guarantee, indemnification or similar contract that obligates or agreement involving potential obligations payable by the Company to conduct business on an exclusive or preferential basis with any third partyits Subsidiaries;
(viii) all contracts or agreements relating to the making of any partnershiploan, joint venture advance or similar capital contribution to, or investment in, any other Person;
(ix) all contracts or agreements relating to the acquisition or disposition (including by way of merger, consolidation, acquisition or sale of stock or assets or otherwise) of any material assets, properties or securities;
(x) all energy purchase agreements;
(xi) all service and maintenance agreements, including any long term service agreements;
(xii) all gas commodity contracts;
(xiii) all energy procurement contracts; and
(xiv) any other contract or agreement that is material to the Company;
(ix) any mortgagesCompany and its Subsidiaries, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether taken as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IPa whole.
(b) (i) All of the Each Material Contracts are Contract is valid and binding on the Company or its Subsidiariesthe applicable Subsidiary, enforceable against it in accordance with its termsas the case may be, and, to the Knowledge of the Company, the counterparties thereto, and are is in full force and effect. Except as set forth on Schedule 4.16(b) of the Disclosure Schedules, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the Company or any Subsidiary nor, to the knowledge none of the Company, any third party is in violation of any provision of, or failed to perform any obligation required under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the Company or any Subsidiary its Subsidiaries nor, to the knowledge Knowledge of the Company, any third party, counterparty to any Material Contract is in breachbreach of, or has received written notice of material breachdefault under, of any Material Contract to which it is a party. The Company has previously delivered to Buyer a complete and accurate copy of each Material Contract, except as disclosed in Schedule 3.13.
Appears in 2 contracts
Sources: Purchase Agreement (Energy & Power Solutions, Inc.), Purchase Agreement (Energy & Power Solutions, Inc.)
Material Contracts. (a) For purposes Section 4.19(a) of the Company Disclosure Schedule sets forth, as of the date of this Agreement, “Material Contract” shall mean a correct and complete list of each of the following Contracts to which the Company or any Subsidiary of its Subsidiaries is a party party, or by which any of their respective properties or assets are is bound:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act), whether or not filed promulgated by the SEC) (other than any Company with the CommissionBenefit Plan);
(ii) any employment Contract that imposes any material restriction on the right or consulting contract (in each case with respect to which ability of the Company has continuing obligations as or any of the date hereof) its Subsidiaries to compete with any current other Person or former (x) executive officer of the Company, (y) member of the Board of Directors, solicit any client or (z) Company employee providing for an annual base salary in excess of $200,000customer;
(iii) any contract providing for indemnification Contract that obligates the Company or its Subsidiaries to conduct business with any guaranty by the Company, in each case third party on a preferential or exclusive basis and that is material to the CompanyCompany and its Subsidiaries, taken as a whole;
(iv) any Contract relating to Indebtedness (other than intercompany indebtedness owed by the Company or any contract providing for indemnification wholly owned Subsidiary to any other wholly owned Subsidiary, or by any wholly owned Subsidiary to the Company) of customers the Company or any of its Subsidiaries having an outstanding principal amount in excess of $5,000,000 or that grants a Lien (other than a Permitted Lien) on properties or assets of the Company or any of its Subsidiaries;
(v) any Contract with respect to an interest, rate, currency or other Persons pursuant swap or derivative transaction (other than those between the Company and its Subsidiaries) with a fair value in excess of $5,000,000;
(vi) any Contract that grants any right of first refusal, right of first offer or similar right with respect to contracts any material assets, rights or properties of the Company or its Subsidiaries;
(vii) any Contract entered into on or after January 1, 2024 that provides for the acquisition or disposition of any assets (other than acquisitions or dispositions of sale in the ordinary course of business;
) or business (ivwhether by merger, sale of stock, sale of assets or otherwise) or capital stock or other equity interests of any contract that purports to limit in Person, and with any material respect the right outstanding obligations as of the Company (x) to engage date of this Agreement, in any line of business, or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets each case with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party5,000,000;
(viii) any partnershipmaterial joint venture, joint venture partnership or limited liability company agreement or other similar contract that is material Contract relating to the formation, creation, operation, management or control of any material joint venture, partnership or limited liability company, other than any such Contract solely between the Company and its wholly owned Subsidiaries or among the Company’s wholly owned Subsidiaries or any organizational documents of the Company’s wholly owned Subsidiaries;
(ix) any mortgages, indentures, guarantees, loans Contract pursuant to which the Company or credit agreements, security agreements any of its Subsidiaries has continuing “earn-out” or other contracts, similar obligations that could result in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case payments in excess of $250,000, other than accounts receivables and payables5,000,000 in the aggregate;
(x) any employee collective bargaining agreement or other contract with any labor unionContract relating to Program Rights under which it would reasonably be expected that the Company and its Subsidiaries would make annual payments in excess of $3,000,000 per year;
(xi) any other contract under which the Company is obligated to make payment network affiliation Contract (or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(xsimilar Contract) abovewith ABC, CBS, Fox, NBC, CW, MyNetworkTV or Spanish language networks;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above Contract that is a material to Sharing Agreement and any related option agreement (other than those among the Company; orCompany and its Subsidiaries);
(xiii) any contract Contract that is a channel sharing agreement with a third party or parties with respect to the sharing of spectrum for the operation of two (2) or more separately owned television stations;
(xiv) any Contract relating to material retransmission or distribution by any MVPD that reported more than 25,000 paid subscribers to the Company IPand its Subsidiaries for May 2025 with respect to at least one Company Station; and
(xv) any Contract with an affiliate or other Person that would be required to be disclosed by the Company under Item 404(a) of Regulation S-K promulgated under the Exchange Act. All contracts of the types referred to in clauses (i) through (xv) above are referred to herein as “Company Material Contracts.”
(b) Neither the Company nor any Subsidiary of the Company is in breach of or default in any respect 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 default in any respect under the terms of any Company Material Contract, and no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Company’s Knowledge, through the action or inaction of any third party, that with notice or the lapse of time or both would constitute a breach of or default or result in the termination of or a right of termination or cancelation thereunder, accelerate the performance or obligations required thereby, or result in the loss of any benefit under the terms of any Company Material Contract, in each case except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. To the Knowledge of the Company, each Company Material Contract (i) All of the Material Contracts are is a valid and binding on obligation of the Company or its Subsidiaries, enforceable against it in accordance with its termsthe Subsidiary of the Company that is party thereto and of each other party thereto, and are (ii) is in full force and effect, subject to laws of general application relating the Enforceability Exceptions, in each case except as would not reasonably be expected to bankruptcyhave, insolvencyindividually or in the aggregate, fraudulent transfera Company Material Adverse Effect. There are no disputes pending or, reorganizationto the Company’s Knowledge, moratorium and similar laws relating threatened with respect to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remediesany Company Material Contract, and to limitations of public policy, (ii) neither the Company or nor any Subsidiary nor, to the knowledge of its Subsidiaries has received any written notice of the Company, any third party is in violation intention of any provision ofother party to a Company Material Contract to terminate for default, convenience or failed to perform otherwise any obligation required under the provisions of, any Company Material Contract, in each case except as disclosed would not reasonably be expected to have, individually or in Schedule 3.13 the aggregate, a Company Material Adverse Effect. True and (iii) neither complete copies of the Company or Material Contracts and any Subsidiary nor, material amendments thereto have been made available to Representatives of Parent prior to the knowledge date of the Companythis Agreement, except if providing any third party, is in breach, such Contract would reasonably be expected to violate any applicable Law or has received written notice of material breach, of any such Company Material Contract, except as disclosed in Schedule 3.13.
Appears in 2 contracts
Sources: Merger Agreement (Tegna Inc), Merger Agreement (Nexstar Media Group, Inc.)
Material Contracts. (a) For purposes Except as set forth in Section 3.08(a) of this Agreementthe Disclosure Schedules, “Material Contract” shall mean the following to which neither the Company or any Subsidiary is a party or nor any of their assets are boundits Subsidiaries is party to or otherwise bound by:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of Contract that provides for the Securities Act), whether payment to or not filed by from the Company with the Commissionor any of its Subsidiaries of more than Five Thousand U.S. Dollars ($5,000) per year (other than any Contract described below in this Section 3.08);
(ii) any employment or consulting contract (in each case with respect to which Contract that requires the Company has continuing obligations as or any of the date hereof) with its Subsidiaries to purchase its total requirements of any current product or former (x) executive officer of the Company, (y) member of the Board of Directors, service from a Third Party or (z) Company employee providing for an annual base salary in excess of $200,000that contain “take or pay” provisions;
(iii) any contract providing Contract that provides for the indemnification or any guaranty by the Company, in each case that is material to Company of any Person or the Company, assumption of any environmental or other Liability of any Person (other than any contract providing for such customary indemnification and assumption of customers or other Persons pursuant to contracts Liability provisions as are present in commercial agreements with customer and vendors entered into in the ordinary course of business);
(iv) any contract that purports to limit in any material respect the right of the Company (x) to engage in any line of businessmerger, acquisition, consolidation, sale or (y) to compete with any Person other business combination or operate in any geographical locationdivestiture transaction Contracts;
(v) any contract relating to the disposition or acquisitionbroker, directly or indirectly (by merger or otherwise)distributor, by the Company of assets with a fair dealer, manufacturer’s representative, franchise, agency, sales promotion, market value in excess of $250,000research, marketing consulting and advertising Contracts;
(vi) any contract that contains any provision that requires other than in the purchase ordinary course of all business with regard to employees located outside of the Company’s requirements United States whose employment agreements contain termination provisions required by applicable Law, any employment, change in control, severance or retention agreement for a given product the benefit of employees that is not terminable by the Company or service from a given third partyany of its Subsidiaries, which product or service is material to the Companyas applicable, at will and without Liability;
(vii) (i) any contract that obligates Contract relating to the Indebtedness (including, without limitation, guarantees) of the Company or any of its Subsidiaries and (ii) any Indebtedness relating to conduct business on an exclusive deferred revenue whether or preferential basis with any third partynot pursuant to a Contract;
(viii) any partnership, joint venture or similar contract that is material to the CompanyContract with any Governmental Authority;
(ix) any mortgagesobligation which purports to limit or restrict in any respect (A) the ability of the Company or any of its Subsidiaries to solicit customers or employees, indenturesor (B) the manner in which, guaranteesor the localities in which, loans all or credit agreements, security agreements any portion of the business and operations of the Company or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess any of $250,000, other than accounts receivables and payablesits Subsidiaries may be conducted;
(x) any employee collective bargaining agreement Contract that provides for any joint venture, partnership or other contract with similar arrangement, including any labor unionshare of revenues, profits, losses, costs or liabilities;
(xi) any Contract with its Affiliates (other contract under which than in the Company is obligated to make payment or incur costs in excess ordinary course of $250,000 in any year and which is not otherwise described in clauses (i)–(x) abovebusiness);
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; orcollective bargaining agreements or Contracts with any Union;
(xiii) any contract relating Contract with a Material Supplier;
(xiv) any agreement pursuant to material which any other party is granted exclusive rights or “most favored party” rights of any type or scope with respect to any products, technology, intellectual property or business of the Company IPor any of its Subsidiaries, or containing any non-competition covenants restricting the business activities of the Company or any of its Subsidiaries;
(xv) any Contract with a Material Customer;
(xvi) any Real Property Lease;
(xvii) any lease of personal property;
(xviii) any guarantee of the obligations of customers, suppliers, officers, directors, employees, Affiliates or other third parties;
(xix) any Contract granting an Encumbrance (other than Permitted Encumbrances) upon any of the property or assets of the Company or any of its Subsidiaries other than Encumbrances on Intellectual Property;
(xx) any Contract under which the Company or any of its Subsidiaries has made advances or loans to any other Person;
(xxi) any settlement agreement;
(xxii) any Contract pursuant to which rights of any Third Party are triggered or become exercisable as a result of the execution of this Agreement, the other Transaction Documents or the consummation of the transactions contemplated hereunder or thereunder, either alone or in combination with any other event;
(xxiii) any confidentiality, secrecy or non-disclosure Contract other than any such Contract entered into by the Company or any of its Subsidiaries (A) in connection with this Agreement or (B) in the ordinary course of business consistent with past practice; and
(xxiv) any power of attorney granted by the Company or any of its Subsidiaries (all such Contracts disclosed, or required to be disclosed, in response to clauses (i) through (xxiii) above, the “Material Contracts”).
(b) (i) All of the Each Material Contracts are Contract is valid and binding on the Company or its SubsidiariesSubsidiaries and, enforceable against it to the Company’s Knowledge, the other parties thereto in accordance with its terms, terms and are is in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither . Neither the Company or nor any Subsidiary Subsidiary, nor, to the knowledge Company’s Knowledge, any other party thereto is in breach 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. To the Company’s Knowledge, no event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract. Complete and correct copies of each Material Contract (including all modifications, amendments and supplements thereto and written waivers thereunder) have been made available to Parent. There are no oral waivers under the Boustead Agreement, any Contract for employment between the Company and an employee of the Company, and any third party is in violation of any provision of, or failed to perform any obligation required under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 contract between an Equityholder and (iii) neither the Company or any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or has received written notice of material breach, of any Material Contract, except as disclosed in Schedule 3.13.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (OncoCyte Corp), Merger Agreement (OncoCyte Corp)
Material Contracts. (a) For purposes Except for the Original Agreement (and as of the date of this Agreement and as of the Closing Date, this Agreement), “Material Contract” shall mean the following to which the Company or Benefit Plans, the Company Real Property Leases, the Company Subleases and agreements filed as exhibits to the Company SEC Documents (including those that are filed with the SEC at any Subsidiary time prior to the Original Agreement Date and incorporated by reference thereto), as of the Original Agreement Date, neither the Company nor any of its Subsidiaries is a party to or any of their assets are boundbound by:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities ActSEC), whether or not filed by the Company with the Commission;
(ii) any employment Contract with any Top Company Customer or consulting contract (in each case Top Company Vendor pursuant to which material payments are to be made or received by the Company or any of its Subsidiaries or material obligations of the Company or any of its Subsidiaries will remain outstanding after the Original Agreement Date, other than with respect to which the Company has continuing obligations as of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000commercial product Warranties on customary terms;
(iii) any contract providing for indemnification Contract under which the Company or any guaranty of its Subsidiaries has continuing indemnification, earnout or similar obligations to or by the Company, in each case that is any third person which are material to the CompanyCompany and its Subsidiaries, taken as a whole, other than any contract providing for indemnification of customers or other Persons pursuant to contracts those entered into on customary terms in connection with the distribution, sale or license of the Company’s products in the ordinary course Ordinary Course of businessBusiness and other than any such Contracts that may be cancelled without liability to the Company or its Subsidiaries upon notice of 90 days or less;
(iv) any contract that purports to limit in Contract concerning the acquisition or divestiture of any entity or any business (or all or substantially all of the assets of any entity or any business), or any investment in, or acquisition or divestiture of any security of, any entity, by the Company or any of its Subsidiaries under which the Company or any of its Subsidiaries has any material respect the right of the Company (x) to engage in any line of business, or (y) to compete with any Person or operate in any geographical locationcontinuing obligations;
(v) any contract relating to Contract for capital expenditures involving payments of more than $4,000,000 individually or $8,000,000 in the disposition or acquisition, directly or indirectly (by merger or otherwise)aggregate, by or on behalf of the Company or any of assets with a fair market value its Subsidiaries, for which reserves have not already been established in excess the financial statements of $250,000the Company and its Subsidiaries;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, Contract which product or service is material to the Companyoperations of the Company and its Subsidiaries, taken as a whole, involving a joint venture or strategic alliance or partnership agreement or other sharing of profits or losses with any person;
(vii) any contract that obligates the Company Contract relating to conduct business on indebtedness for borrowed money in an exclusive or preferential basis with any third partyamount in excess of $5,000,000 individually;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract Contract with any labor union;
(xi) any other contract under which the Top Company is obligated to make payment Customer or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; Top Company Vendor containing any, or
(xiii) any contract relating to material Company IP.
(b) (i) All of the Material Contracts are valid and binding on the Company or its Subsidiaries, enforceable against it in accordance with its terms, and are in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the Company or any Subsidiary nor, to the knowledge of the Company, any third party is in violation of other material Contract containing any provision ofmaterial, covenants, commitments, or failed to perform any obligation required under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither other obligations by the Company or any Subsidiary norof its Subsidiaries (A) not to compete with any person in a line of business or activity, (B) not to engage in any line of business or activity in any geographic location in a line of business, activity or geographic location, (C) granting any exclusive rights to any third party, (D) including “take or pay,” “sole source” or “requirements” obligations, (E) granting any “most favored pricing” or similar terms to any third party, or (F) otherwise prohibiting or limiting the right of the Company or its Subsidiaries to sell, distribute or manufacture any products or services or to purchase or otherwise obtain any software, components, parts or subassemblies, in each case, other than any such Contracts (x) that may be cancelled without material liability to the knowledge Company or any of its Subsidiaries upon notice of 180 days or less, or (y) which are not material to the Company and its Subsidiaries, taken as a whole;
(ix) any Contract disclosed or required to be disclosed on Section 3.20(g) of the Company Disclosure Letter;
(x) any Order or settlement or conciliation agreement entered into since January 1, 2018, other than (A) releases immaterial in nature and amount entered into with former employees or independent contractors of the Company in the Ordinary Course of Business or (B) settlement agreements which would not require the Company to pay consideration in excess of $2,000,000;
(xi) any Contract evidencing an outstanding loan, advance or investment by the Company or any of its Subsidiaries to or in, any person (other than the Company or any other Subsidiary of the Company) of more than $5,000,000 in the aggregate (excluding trade receivables and advances to employees for normally incurred business expenses, each arising in the Ordinary Course of Business);
(xii) each Material Government Contract (excluding any Government Contracts with universities or similar institutions on customary and reasonable terms); and
(xiii) any Contract not described above and pursuant to which the Company or any of its Subsidiaries has paid or received payments in excess of $5,000,000 in the most recent fiscal year, or is obligated to pay or entitled to receive payments in excess of $5,000,000 in the 12-month period following the Original Agreement Date, in each case, other than (A) Contracts solely between the Company and a wholly owned (direct or indirect) Subsidiary of the Company or solely between wholly owned (direct or indirect) Subsidiaries of the Company, any third party(B) Contracts with customers, is in breachsuppliers, vendors, or has received written notice third-party service providers entered into in the Ordinary Course of material breach, of any Material Contract, except as disclosed in Schedule 3.13.Business on reasonable terms or (C)
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Lumentum Holdings Inc.), Agreement and Plan of Merger (Coherent Inc)
Material Contracts. (a) Section 5.19 of the Company Disclosure Schedule sets forth a true and complete list of each Material Contract to which the Company or any of its Subsidiaries is a party to or bound that is in effect as of the date of this Agreement and the Company has made available to Parent, or publicly filed with the SEC, a true and complete copy of each such Material Contract. For purposes of this Agreement, “Material Contract” shall mean the following to which the Company or any Subsidiary is a party or any of their assets are bound:
mean: (i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities 1934 Act), whether or not filed by the Company with the Commission;
SEC, (ii) any employment employment, severance or consulting contract agreement (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current or former (x) executive officer or management employee of the Company, (y) member of the Board of Directors, or (z) employee of the Company employee providing for who receives an annual base salary in excess of $200,000;
150,000, (iii) any contract providing for indemnification or any guaranty by the Company, in each case that is material to the Company, other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course of business;
(iv) any contract agreement that purports to limit in any material respect the right of the Company or any of its Subsidiaries (xor, at any time after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) to (A) sell, supply or distribute any products or services of or to any other Person or in any geographic region, (B) engage in any line of business, business or (yC) to compete with or to obtain products or services from any Person or operate in limiting the ability of any geographical location;
Person to provide products or services to the Company or any of its Subsidiaries, (viv) any contract agreement relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company or any of its Subsidiaries after the date of this Agreement of assets with a fair market value in excess of $250,000;
500,000 individually, (viv) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product partnership or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture agreement or similar contract any agreement with a selling partner, in each case that is material to the Company;
Company and its Subsidiaries taken as a whole, (ixvi) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contractsContracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,0001,000,000, other than (A) accounts receivables and payables;
payables and (xB) loans to direct or indirect wholly-owned Subsidiaries of the Company, (vii) any employee collective bargaining agreement or other contract agreement with any labor union;
, (viii) any agreement that by its terms limits the payment of dividends or other distributions by the Company or any of its Subsidiaries, (ix) any agreement that grants any right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of its Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material amount of assets or businesses, (x) each Lease involving annual payments by the Company or any of its Subsidiaries in excess of $100,000, (xi) any other contract Contract under which the Company or any of its Subsidiaries is obligated to make payment or incur costs in excess of $250,000 500,000 in any year and which is not otherwise described in clauses (i)–(xi)-(x) above;
, (xii) the Contract listed on Section 5.19(xii) of the Company Disclosure Schedule and (xiii) any contract material Contract pursuant to which is not the Company or one of its Subsidiaries licenses or otherwise described in clauses (i)-(xi) above that is grants to a Third Party, or receives a license or grant from a Third Party of, any Intellectual Property rights material to the Company; or
’s or one of its Subsidiaries’ business as currently conducted (xiiiother than Contracts granting rights to readily available hardware and COTS). Except for breaches, violations or defaults which would not reasonably be expected to have a Company Material Adverse Effect, (w) any contract relating to material Company IP.
(b) (i) All each of the Material Contracts are valid is a valid, binding and binding on enforceable obligation of the Company or its Subsidiariesthe applicable Subsidiary of the Company and, enforceable against it to the knowledge of the Company, of the other party or parties thereto in accordance with its terms, and are in full force and effect, terms (subject to laws of general application relating to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar or other laws relating to or affecting creditors’ rights generally and rules general principles of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policyequity), (iix) each of the Material Contracts is in full force and effect, (y) neither the Company or nor any Subsidiary norof its Subsidiaries, nor to the Company’s knowledge of the Companyany other party to a Material Contract, any third party is in violation of has violated any provision of, or taken or failed to perform take any obligation required act which, with or without notice, lapse of time, or both, would constitute a default under the provisions of, any of such Material Contract, except as disclosed in Schedule 3.13 Contract and (iiiz) as of the date hereof, neither the Company or nor any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or its Subsidiaries has received written notice of material breachin writing that it has breached, of violated or defaulted under any Material Contract, except as disclosed in Schedule 3.13Contract or that any other party intends to terminate any Material Contract prior to its scheduled termination date.
Appears in 2 contracts
Sources: Merger Agreement (MediaMind Technologies Inc.), Merger Agreement (DG FastChannel, Inc)
Material Contracts. (a) For purposes Except as set forth in Section 2.16(a) of the Seller Disclosure Schedule (which shall reference the applicable clause of this Agreementsubsection (a)) neither the Company nor any Company Subsidiary is a party to or bound by any:
(i) Contract for capital expenditures or the acquisition or construction of fixed assets which requires aggregate future payments in excess of $750,000 other than Contracts for which the payments to be made thereunder are currently accounted for in Seller’s capital budget;
(ii) Contract prohibiting or restricting the ability of the Company or any Company Subsidiary to conduct the Business, “Material Contract” shall mean to compete in any line of business or to engage in any business or operate in any geographical area, in each case other than usual and customary restrictions contained in Leases;
(iii) Contract containing any provision requiring the following Company or any Company Subsidiary to purchase a minimum amount of product or allocate a minimum amount of shelf space to certain products;
(iv) Contract (or group of Contracts relating to the same site) requiring aggregate future payments or expenditures in excess of $750,000 and relating to cleanup, abatement, remediation or similar actions in connection with environmental Liabilities;
(v) royalty Contract or other Contract with respect to Intellectual Property (as defined in Section 2.21(c) below) which, pursuant to the terms thereof, requires future payments by the Company or a Company Subsidiary in excess of $750,000 per annum;
(vi) Contract pursuant to which the Company or any Company Subsidiary has entered into a joint venture or similar arrangement with any other Person (other than the Company or another Company Subsidiary);
(vii) indenture, mortgage, loan or credit Contract under which the Company or a Company Subsidiary has outstanding indebtedness or any outstanding note, bond, indenture or other evidence of indebtedness for borrowed money, or guaranteed indebtedness for money borrowed by others, in an amount greater than $250,000 individually or $1,000,000 in the aggregate;
(viii) Contract (including any so-called take or pay or keep well agreements) under which the Company or any Company Subsidiary has directly or indirectly guaranteed or otherwise agreed to be responsible for indebtedness, Liabilities or obligations of another Person (other than the Company or another Company Subsidiary);
(ix) Contract or commitment providing for an interest rate, currency or commodity swap, derivative, hedge, forward purchase or sale or other transaction similar in nature or effect to any off-balance sheet financing;
(x) Contract under which the Company or a Company Subsidiary is (A) a party lessee of, or holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by a third Person, or (B) a lessor of their assets are bound:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act), whether or not filed tangible personal property owned by the Company with or the Commission;
(ii) applicable Company Subsidiary, in any employment or consulting contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an requires annual base salary payments in excess of $200,000750,000;
(iiixi) Contract for pending acquisitions of capital stock or assets of another Person (whether by merger or stock or asset purchase);
(xii) Contract relating to any pending purchase or sale by the Company or any Company Subsidiary of any customer prescription files; and
(xiii) any contract providing for indemnification Contract (other than Contracts of the type described in subclauses (i) through (xiv) above) that involves aggregate future payments by or any guaranty by the Company, in each case that is material to the CompanyCompany or a Company Subsidiary in excess of $750,000 per annum, other than any contract providing for indemnification of customers a purchase or sales order or other Persons pursuant to contracts Contract entered into in the ordinary course of business;
(iv) any contract that purports to limit in any material respect the right of the Company (x) to engage in any line of business, or (y) to compete business consistent with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise past practice. Each such Contract described in clauses (i)–(xi) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
through (xiii) any contract relating is referred to material Company IPherein as a “Material Contract”.
(b) Copies of all Material Contracts have been previously delivered to or made available for inspection by Purchaser, and such copies are complete and correct in all material respects. Except as set forth in Section 2.16(b) of the Seller Disclosure Schedule, (i) All each of the Material Contracts are valid and binding on the Company or its Subsidiaries, enforceable against it in accordance with its terms, and are is in full force and effecteffect and is a valid and binding obligation of the Company or Company Subsidiary, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remediesas applicable, and enforceable against the Company or such Company Subsidiary, and, to limitations of public policySeller’s knowledge, a valid and binding obligation enforceable against each other party thereto; (ii) the Company or Company Subsidiary, as applicable, has duly performed all of its obligations required to be performed by it to date under each of the Material Contracts and is not (with or without the lapse of time or the giving of notice, or both) in breach or default thereunder; (iii) to Seller’s knowledge, each of the other parties to such Material Contract has performed all obligations required to be performed by it to date under such Material Contract and is not (with or without the lapse of time or the giving of notice, or both) in breach or default thereunder; (iv) neither the Company or nor any Company Subsidiary nor, to the knowledge of the Company, any third party is in violation of any provision of, or failed to perform any obligation required under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the Company or any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or has received any written notice of material breachany intention to terminate, not renew or challenge the validity or enforceability of any Material Contract; and (v) none of the Material Contracts requires the consent of any other party thereto in connection with the consummation of the transactions contemplated by this Agreement, in each case, except as disclosed would not reasonably be expected to have a Company Material Adverse Effect.
(c) As used in Schedule 3.13this Agreement, the term “Contract” means any contract, agreement, lease, license, purchase order, indenture, note, bond, loan, instrument, commitment or other arrangement that is binding on any Person or any part of its property under applicable Law.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Jean Coutu Group (PJC) Inc.), Stock Purchase Agreement (Rite Aid Corp)
Material Contracts. Section 3.18 of the Disclosure Schedule lists each of the following oral or written contracts, agreements, licenses, notes, bonds, mortgages, indentures, commitments or other instruments or obligations (aand all amendments, modifications and supplements thereto and all side letters to which the Company or any of its Subsidiaries is a party affecting the obligations of any party thereunder) For purposes (collectively, “Contracts”) to which the Company or any of this Agreementits Subsidiaries is a party or by which any of their respective properties or assets are bound (each such Contract and agreement, being a “Material Contract”) (notwithstanding anything below, “Material Contract” shall mean not include any Contract that (1) is terminable by the following Company or any of its Subsidiaries upon 30 days’ notice without a penalty, premium or other cost, (2) will be fully performed and satisfied as of or prior to Closing or (3) is a Company Lease, a Leasehold Interest or an Employee Benefit Plan):
(a) all Contracts that call for aggregate payments to or by, or other considerations to or from, the Company or any of its Subsidiaries under such Contract of more than $1,750,000 over the remaining term of such Contract;
(b) all Contracts that call for annual aggregate payments to or by, or other consideration to or from, the Company or any of its Subsidiaries under such Contract of more than $750,000 over the remaining term of such Contract;
(c) any Contract that contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company or any of its Subsidiaries, or any existing or future affiliate of any of them or that purports to restrict the right of the Company or any Subsidiaries or any existing or future affiliate of any of them to conduct any line of business or to compete with any Person or operate in any geographic area or location;
(d) any partnership, limited liability company agreement, joint venture or other similar agreement entered into with any third party;
(e) any Contracts for the pending purchase or sale, option to purchase or sell, right of first refusal, right of first offer or any other contractual right to purchase, sell, dispose of, or master lease, by merger, purchase or sale of assets or stock or otherwise, any real property;
(f) any Contract pursuant to which the Company or any Subsidiary is a party of its Subsidiaries agrees to indemnify or hold harmless any director or executive officer of the Company or any of their assets are bound:its Subsidiaries (other than the organizational documents for the Company or any of its Subsidiaries);
(g) (i) any loan agreement, letter of credit, indenture, note, bond, debenture, mortgage or any other document, agreement or instrument evidencing a capitalized leased obligation or other indebtedness, or any guarantee thereof, of, for the benefit of, or payable to the Company or any of its Subsidiaries, in each case in excess of $1,750,000, or (ii) any Contract to provide any funds to or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of the Company or other Person;
(h) any Contract concerning an interest rate cap, interest rate collar, interest rate swap, currency hedging transaction or any other similar agreement to which the Company or any of its Subsidiaries is a party;
(i) any Contract pursuant to which the Company or any of its Subsidiaries has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability in respect of any purchase price adjustment, earn-out or contingent purchase price or other indemnity that, in each case, could reasonably be expected to result in future payments of more than $1,750,000; or any Contract relating to the settlement or proposed settlement of any action, which involves the issuance of equity securities or the payment of an amount in excess of $750,000;
(j) any “standstill” or similar agreement, voting agreement or registration rights agreement;
(k) any Contract with any Governmental Entity;
(l) any Contract (other than among consolidated Subsidiaries of the Company) under which indebtedness is outstanding or may be incurred or pursuant to which any property or asset is mortgaged, pledged or otherwise subject to encumbrances, other than a Permitted Encumbrance, or any Contract restricting the incurrence of indebtedness or the incurrence of Encumbrances or restricting the payment of dividends or the transfer of any properties owned by the Company or any of its Subsidiaries; and
(m) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of under the Securities Act). Except as would not reasonably be expected to result in a Company Material Adverse Effect, whether or not filed by (i) neither the Company with nor any of its Subsidiaries is and, to the Commission;
(ii) any employment or consulting contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current or former (x) executive officer Knowledge of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000;
(iii) any contract providing for indemnification or any guaranty by the Company, in each case that is material to the Company, no other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course of business;
(iv) any contract that purports to limit in any material respect the right of the Company (x) to engage in any line of business, or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IP.
(b) (i) All of the Material Contracts are valid and binding on the Company or its Subsidiaries, enforceable against it in accordance with its terms, and are in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the Company or any Subsidiary nor, to the knowledge of the Company, any third party is in breach or violation of any provision of, or failed to perform any obligation required under the provisions ofdefault under, any Material Contract, except as disclosed in Schedule 3.13 and (iiiii) neither none of the Company or any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or its Subsidiaries has received written notice any claim of material breach, default under or cancellation of any Material Contract, except as disclosed and (iii) no event has occurred which would result in Schedule 3.13a breach or violation of, or a default under, any Material Contract (in each case, with or without notice or lapse of time or both). Each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Company or any of its Subsidiaries and, to the Knowledge of the Company, with respect to the other parties thereto. The Company has made available to Parent true and complete copies of all Material Contracts (including any amendments or other modifications thereof).
Appears in 2 contracts
Sources: Merger Agreement (Trustreet Properties Inc), Merger Agreement (Trustreet Properties Inc)
Material Contracts. (a) For purposes Section 4.15 of this Agreement, “Material Contract” shall mean the Company Disclosure Schedule sets forth all of the following Contracts to which the Company Company, the Purchased Companies or any Subsidiary of their Subsidiaries is a party or by which it is bound under which there are continuing obligations (other than confidentiality restrictions) and other than the Company Plans and Contracts made after the date hereof as permitted by or in compliance with Section 6.2 (collectively, the "Material Contracts"): (i) Contracts with any current officer or director of the Company, the Purchased Companies or any of their Subsidiaries; (ii) Contracts with any labor union or association representing any employee of the Company, the Purchased Companies or any of their Subsidiaries; (iii) Contracts pursuant to which any party is required to purchase or sell a stated portion of its requirements or output from or to another party; (iv) Contracts for the sale of any of the assets are bound:
of the Company, the Purchased Companies or any of their Subsidiaries other than in the Ordinary Course of Business or for the grant to any person of any preferential rights to purchase any of its assets; (iv) joint venture agreements; (vi) Contracts containing covenants of the Company, the Purchased Companies or any of their Subsidiaries not to compete in any line of business or with any person in any geographical area or covenants of any other person not to compete with the Company, the Purchased Companies or any of their Subsidiaries in any line of business or in any geographical area; (vii) Contracts relating to the acquisition by the Company, the Purchased Companies or any of their Subsidiaries of any operating business or the capital stock of any other person; (viii) Contracts relating to the borrowing of money; (ix) any “material contract” distributor, supplier (as such term is defined used in Item 601(b)(10) of Regulation S-K of the Securities ActCompany SEC Documents), whether advertising, agency or not filed by the Company with the Commission;
manufacturer's representative Contract; (iix) agreement of guarantee, support, assumption or endorsement of, or any employment or consulting contract (in each case similar commitment with respect to which the Company has continuing obligations as Liability or Indebtedness of the date hereofany other Person; (xi) with any current or former (x) executive officer of the Companytrust indenture, (y) member of the Board of Directorsmortgage, promissory note, loan agreement or (zxii) Company employee providing for an annual base salary in excess of $200,000;
(iii) any contract providing for indemnification or any guaranty other Contracts, other than Real Property Leases, which involve the expenditure by the Company, the Purchased Companies or any of their Subsidiaries of more than $150,000 in each case that is the aggregate or $25,000 annually or require performance by any party more than one year from the date hereof or are otherwise material to the Company, other than the Purchased Companies and any contract providing for indemnification of customers their Subsidiaries taken as a whole. The Company, the Purchased Companies and their Subsidiaries have provided or other Persons pursuant to contracts entered into in the ordinary course of business;
(iv) any contract that purports to limit in any material respect the right of the Company (x) to engage in any line of business, or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating made available to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase Purchaser true and complete copies of all of the Company’s requirements for a given product or service from a given third party, which product or service is written Material Contracts and written summaries of the material to terms of all of the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IP.
(b) (i) oral Material Contracts. All of the Material Contracts are valid and binding on the Company or its Subsidiaries, enforceable against it in accordance with its terms, and other agreements are in full force and effecteffect and are the legal, valid and binding obligation of the Company, the Purchased Companies and/or any of their Subsidiaries, enforceable against them in accordance with their terms, subject to laws of general application relating to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ ' rights and remedies generally and rules subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law governing specific performanceor in equity). None of the Company, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the Company Purchased Companies or any Subsidiary of their Subsidiaries is in default in any material respect under any Material Contract, nor, to the knowledge Knowledge of the Company, the Purchased Companies or any third of their Subsidiaries, is any other party is in violation of any provision of, or failed to perform any obligation required under the provisions of, any Material Contract, except as disclosed Contract in Schedule 3.13 and (iii) neither the Company or default thereunder in any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or has received written notice of material breach, of any Material Contract, except as disclosed in Schedule 3.13respect.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement (Metron Technology N V), Stock and Asset Purchase Agreement (Fsi International Inc)
Material Contracts. (a) For purposes Section 4.20(a) of the Company Disclosure Schedule contains an accurate and complete list of each contract described below in this AgreementSection 4.20(a) under which the Company or any of its Subsidiaries has any current or future rights, responsibilities, obligations or liabilities (in each case, whether contingent or otherwise), in each case as of the date hereof (other than the Company Plans) (collectively, the “Material Contract” shall mean Contracts”):
(i) any partnership, joint venture, strategic alliance, collaboration, co-promotion or research and development project contract that is material to the following Company and its Subsidiaries, taken as a whole;
(ii) any contract relating to outstanding indebtedness of the Company or any of its Subsidiaries for borrowed money or any financial guaranty thereof in an amount in excess of $1,000,000, other than (A) contracts among the Company and its wholly owned Subsidiaries and (B) financial guarantees entered into in the ordinary course of business;
(iii) any contract (excluding licenses for commercial off-the-shelf computer software and non-exclusive licenses granted in the ordinary course of business) to which the Company or any Subsidiary of its Subsidiaries is a party pursuant to which the Company or any of their assets are bound:its Subsidiaries (A) is granted any license or right to use, or covenant not to sue with respect to, any Intellectual Property of a Third Party or (B) has granted to a Third Party any license or right to use, or covenant not to sue with respect to, any Intellectual Property, and, in the case of both (A) and (B), which contract is material to the Company and its Subsidiaries, taken as a whole;
(iiv) any agreement for the purchase, sale or lease of supplies, goods or products or for the furnishing or receipt of services, in each case, which provides for payments to or by the Company and its Subsidiaries that exceed $2,000,000 annually or $7,500,000 in the aggregate;
(v) any shareholders, investors rights or registration rights agreement;
(vi) any other agreement which provides for payments to or by the Company and its Subsidiaries that exceed $5,000,000 individually or $15,000,000 in the aggregate;
(vii) any Labor Agreement;
(viii) any contract that is a settlement, conciliation or similar agreement with any Governmental Authority or Person or pursuant to which the Company or any of its Subsidiaries has any material outstanding obligation;
(ix) any contract (A) prohibiting, or purporting to limit or restrict the Company’s, any of the Company’s Affiliates’ or any of its Subsidiaries’ ability to compete or to conduct its businesses in any geographical area or the type or line of business in which the Company or any of its Subsidiaries is engaged, (B) providing “most favored nation” or similar provisions where the pricing, discounts or benefits to any customer or other business relation of the Company or any of its Subsidiaries changes based on the pricing, discounts or benefits offered to other customers or business relations, (C) granting a right of first refusal or right of first offer or similar right for any line of business or assets of the Company or any of its Subsidiaries, (D) establishing an exclusive sale or purchase or similar obligation with respect to any obligation or geographical area or (E) imposing any minimum requirements or obligations of the Company or any of its Subsidiaries for any minimum purchase, expenditure, investment, sale, payment, production, supply, output, distribution or similar minimum requirements obligations or any take-or-pay provision in favor of a third party;
(x) any contract related to any completed, pending or future (A) disposition, divestiture or acquisition (whether by merger, sale of stock, sale of assets or otherwise) of any business, equity interests or material portion of assets or properties by the Company or any of its Subsidiaries or (B) consolidation, recapitalization, reorganization or other business combination with respect to the Company or any of its Subsidiaries, in each case, under which the Company or any of its Subsidiaries has outstanding payment or indemnification obligations; and
(xi) any other contract, arrangement, commitment or understanding that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities ActSEC), whether or not filed by the Company with the Commission;
(ii) any employment or consulting contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000;
(iii) any contract providing for indemnification or any guaranty by the Company, in each case that is material to the Company, other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course of business;
(iv) any contract that purports to limit in any material respect the right of the Company (x) to engage in any line of business, or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IP.
(b) Except for breaches, violations or defaults which would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, as of the date hereof (i) All each contract set forth in Section 4.20(a) of the Material Contracts are Company Disclosure Schedule is valid and binding on the Company or its Subsidiaries, enforceable against it in accordance with its terms, and are in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium effect and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the Company or nor any Subsidiary norof its Subsidiaries, nor to the knowledge Knowledge of the CompanyCompany any other party to any such contract, any third party is in violation of any provision of, or failed to perform any obligation required under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the Company or any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or has received written notice of material breach, of any Material Contract, except as disclosed in Schedule 3.13thereof.
Appears in 2 contracts
Sources: Merger Agreement (Chase Corp), Merger Agreement (Chase Corp)
Material Contracts. (a) For purposes Except for contracts listed in Section 4.12(a) of the Company Disclosure Letter or filed as exhibits to the Company SEC Filings filed with the SEC prior to the date of this Agreement, “Material Contract” shall mean the following to which neither the Company or nor any Subsidiary Company Subsidiary, as of the date of this Agreement, is a party to or bound by any of their assets are boundcontract that:
(i) any “material contract” is required to be filed as an exhibit to the Company’s Annual Report on Form 10-K pursuant to Item 601(b)(2), (as such term is defined in Item 601(b)(103), (4), (9) or (10) of Regulation S-K of the Securities Act), whether or not filed promulgated by the Company with the CommissionSEC;
(ii) obligates the Company or any employment Company Subsidiary to make non-contingent aggregate annual expenditures (other than principal and/or interest payments or consulting contract (in each case the deposit of other reserves with respect to which the Company has continuing obligations as of the date hereofdebt obligations) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000250,000 and is not cancellable within sixty (60) days without material penalty to the Company or any Company Subsidiary, except for any Company Lease or any ground lease affecting any Company Property;
(iii) contains any contract providing for indemnification non-compete or exclusivity provisions with respect to any line of business or geographic area that restricts the business of the Company or any guaranty Company Subsidiary, or that otherwise restricts the lines of business conducted by the Company, Company or any Company Subsidiary or the geographic area in each case that is material to which the Company, other than Company or any contract providing for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course of Company Subsidiary may conduct business;
(iv) is an agreement which obligates the Company or any contract that purports Company Subsidiary to limit in indemnify any material respect the right past or present directors, officers, trustees, employees and agents of the Company (x) or any Company Subsidiary pursuant to engage which the Company or Company Subsidiary is the indemnitor, other than any operating agreements or property management agreements or any similar agreement pursuant to which a Company Subsidiary that is not wholly-owned, directly or indirectly, by the Company provides such an indemnification to any such directors, officers, trustees, employees or agents in any line connection with the indemnification by such non-wholly-owned Company Subsidiary of business, the Company or (y) to compete with any Person or operate in any geographical locationanother Company Subsidiary thereunder;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by constitutes an Indebtedness obligation of the Company or any Company Subsidiary with a principal amount outstanding greater than $250,000;
(vi) would prohibit or materially delay the consummation of the Mergers as contemplated by this Agreement;
(vii) requires the Company or any Company Subsidiary to dispose of or acquire assets or properties (other than in connection with the expiration of a Company Lease or a ground lease affecting a Company Property) with a fair market value in excess of $250,000;
(vi) , or involves any contract that contains pending or contemplated merger, consolidation or similar business combination transaction, except for any provision that requires the purchase of all of the Company’s requirements for a given product Company Lease or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the ground lease affecting any Company to conduct business on an exclusive or preferential basis with any third partyProperty;
(viii) any partnershipconstitutes an interest rate cap, joint venture interest rate collar, interest rate swap or similar other contract that is material or agreement relating to the Companya hedging transaction;
(ix) constitutes an agreement under which the Company or any mortgages, indentures, guarantees, loans Company Subsidiary has purchased or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case sold real property and has uncompleted financial obligations in excess of $250,000, other than accounts receivables and payables;
(x) requires the Company or any employee collective bargaining agreement Company Subsidiary to make any reprorations or other contract adjustments to previously paid prorations with respect to any labor unionCompany Properties that would reasonably be expected to result in the loss of future payments to, or an obligation to make payments by, the Company or any Company Subsidiary of more than $250,000;
(xi) sets forth the operational terms of a joint venture, partnership, limited liability company or strategic alliance of the Company or any Company Subsidiary (excluding agreements solely between the Company and any wholly-owned Company Subsidiary other than any Excluded Asset Company);
(xii) is an agreement wherein a Third Party provides property management services to the Company or any Company Subsidiary;
(xiii) constitutes a loan to any Person (including any Excluded Asset Company, but excluding any other contract under which wholly-owned Company Subsidiary) by the Company is obligated to make payment or incur costs any Company Subsidiary in an amount in excess of $250,000 in any year and which 250,000;
(xiv) is an agreement or policy for risk sharing or reinsurance with a professional reinsurance company;
(xv) is an agreement with respect to an Affiliate Transaction; or
(xvi) is not otherwise described in clauses (i)–(xi) above;
through (xii) any contract which is not otherwise described in clauses (i)-(xixv) above that is material to the Company; or
(xiiiCompany and any Company Subsidiary, taken as a whole. Each contract listed in Section 4.12(a) of the Company Disclosure Letter, or filed as an exhibit to Company SEC Filings filed with the SEC prior to the date of this Agreement, to which the Company or any contract relating Company Subsidiary, as of the date of this Agreement, is a party or by which it is bound is referred to material herein as a “Company IPMaterial Contract.”
(b) (i) All of Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Contracts are valid Adverse Effect, each Company Material Contract is legal, valid, binding and binding enforceable on the Company or its Subsidiariesand each Company Subsidiary that is a party thereto and, enforceable against it in accordance with its termsto the knowledge of the Company, each other party thereto, and are is in full force and effect, subject to laws of general application relating to except as may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and or other similar laws relating to or Laws affecting creditors’ rights generally and rules by general principles of law governing specific performanceequity (regardless of whether enforceability is considered in a proceeding in equity or at Law). Except as, injunctive relief individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect, the Company and each Company Subsidiary has performed all obligations required to be performed by it prior to the date hereof under each Company Material Contract and, to the knowledge of the Company, each other equitable remedies, and party thereto has performed all obligations required to limitations be performed by it under such Company Material Contract prior to the date hereof. None of public policy, (ii) neither the Company or any Subsidiary Company Subsidiary, nor, to the knowledge of the Company, any third other party thereto, is in material breach or violation of any provision of, or failed to perform any obligation required under the provisions ofdefault under, any Company Material Contract, and no event has occurred that with notice or lapse of time or both would constitute a violation, breach or default under any Company Material Contract, except as disclosed where in Schedule 3.13 and (iii) neither each case such breach, violation or default would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Neither the Company or nor any Company Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or has received written notice of material breach, of any violation or default under any Company Material Contract, except as disclosed for violations or defaults that, individually or in Schedule 3.13the aggregate, would not reasonably be expected to have a Company Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Extra Space Storage Inc.), Merger Agreement (SmartStop Self Storage, Inc.)
Material Contracts. (a) For purposes Except for (i) this Agreement and (ii) any Contracts disclosed in the Company SEC Documents, Section 4.21(a) of the Company Disclosure Schedule contains an accurate and complete list of each Contract in the categories described below in this AgreementSection 4.21(a), “Material Contract” shall mean the following in each case, to which the Company or any Subsidiary of its Subsidiaries is a party party, or by which the assets or properties of such Persons are bound, and under which the Company or any of their assets are bound:its Subsidiaries has any current or future rights, responsibilities, obligations or liabilities (in each case, whether contingent or otherwise), in each case as of the date hereof (each, whether or not set forth on Section 4.21(a) of the Company Disclosure Schedule, a “Material Contract”):
(i) any “material contract” each Contract that (as such term is defined in Item 601(b)(10A) of Regulation S-K materially limits the freedom of the Securities Act)Company or any of its Subsidiaries to compete in any line of business or geographic region, whether or not filed by with any Person, (B) contains any material “most favored nation” provision, exclusive dealing arrangement or arrangement that grants any call or put option, tag-along right, drag-along right, right of first refusal, right of first offer, right of first negotiation or similar preferential right to any other Person, (C) prohibits or materially limits the rights of the Company with the Commission;
(ii) or any employment of its Subsidiaries to make, sell or consulting contract (in each case distribute any products or services, or use, transfer or distribute, or enforce any of their rights with respect to which the Company has continuing obligations as to, any of the date hereof) with any current or former (x) executive officer of the Companytheir material assets, (yD) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000;
(iii) any contract providing for indemnification or any guaranty by the Company, in each case that is material to the Company, other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course of business;
(iv) any contract that purports to limit in any material respect the right ability of the Company or its Subsidiaries (or, at and after the Effective Time, Parent or its Subsidiaries) to hire, employ or enter into a similar arrangement with any Person (other than ordinary course employee non-solicit or non-compete restrictions), (E) provides for the Company or any Subsidiary to be the exclusive or preferred provider of any product or service to any Person, or (F) provides for any Person to be the exclusive or preferred provider of any product or service to the Company or any Subsidiary or that otherwise involves the granting by the Company or any Subsidiary to any Person of exclusive or preferred rights of any kind;
(ii) other than with respect to a partnership or entity that is wholly owned by the Company or any of its Subsidiaries, any partnership or joint venture Contracts, or any material strategic alliance, or joint development Contract;
(iii) each Contract evidencing outstanding Indebtedness of the Company (xsolely under clauses (a) and (b) of the definition of “Indebtedness”) or any of its Subsidiaries or any financial guaranty thereof in an amount, together with any undrawn commitments to fund Indebtedness under such Contract, in excess of $10,000,000, other than (A) Contracts among the Company and its wholly owned Subsidiaries and (B) financial guarantees entered into in the ordinary course of business with a value less than $10,000,000;
(iv) any Contract (excluding licenses for commercial off-the-shelf computer software or non-exclusive licenses granted in the ordinary course of business) to engage in which the Company or any line of businessits Subsidiaries is a party pursuant to which the Company or any of its Subsidiaries (A) is granted any license or right to use, or covenant not sue with respect to, any Intellectual Property of a Third Party or (yB) has granted to compete a Third Party any license or right to use, or covenant not to sue with respect to, any Person or operate Intellectual Property, and, in any geographical locationthe case of both (A) and (B), which Contract is material to the Company and its Subsidiaries, taken as a whole;
(v) any contract relating to the disposition collective bargaining agreement, works council agreement, labor or acquisitiontrade union contracts or other similar agreement with any union or other bargaining representative of any Company Employee (collectively, directly or indirectly (by merger or otherwise“Collective Bargaining Agreements”), by the Company of assets with a fair market value in excess of $250,000;
(vi) each Contract with any contract Company Service Provider that contains provides for any provision that requires the purchase of all of the Company’s requirements for a given product severance, retention, change in control, stay, transaction-based or service from a given third party, which product similar bonuses or service is material termination payments or benefits to the Companysuch Company Service Provider with an aggregate value exceeding $1,000,000;
(vii) any contract Contract involving (A) a pending acquisition or sale of (or option to purchase or sell) any vessel or any other material asset, including any Company Vessel (other than acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets), in each case, other than with respect to the acquisition or sale of a vessel, involving assets with an aggregate fair market value not exceeding $10,000,000, (B) any acquisition or divestiture Contract that obligates contains unpaid “earn out” or other similar contingent payment obligations that are reasonably expected to exceed $10,000,000 in the Company to conduct business on an exclusive aggregate, or preferential basis with (C) any third partyacquisition or divestiture Contract that contains material outstanding indemnity obligations;
(viii) any partnershipContract that relates to the time or bareboat chartering (including time charters, joint venture bareboat charters or similar contract agreements with Governmental Authorities), management (technical and/or commercial), crewing, operation, stacking, finance leasing (including sale/leaseback or similar arrangements) or pooling of any Company Vessel that is material has resulted in payments to or by the CompanyCompany or any of its Subsidiaries of more than $10,000,000 in the aggregate for the prior fiscal year;
(ix) any mortgagesship-sales, indenturesmemorandum of agreement or other vessel acquisition Contract entered into since January 1, 2021 other than with respect to the Company Vessels and any Contract entered into since January 1, 2021 with respect to Newbuildings and the financing thereof, including performance guarantees, loans or credit counter guarantees, refund guarantees, supervision agreements and plan verification services agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement Contract providing for an advance or other contract with capital contribution to, or investment in, any labor unionPerson that is not the Company or its Subsidiaries, in each case, in amounts exceeding $10,000,000 over any 12-month period;
(xi) any other contract under which the Company is obligated Contract relating to make payment financial (including interest rate and exchange rate) or incur costs commodities hedging, swaps, options, futures, forward contracts or similar arrangements, in each case, having an outstanding principal or notional amount in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above10,000,000;
(xii) any contract which Contract involving the settlement, conciliation or similar resolution of any Legal Action that (A) obligates the Company or its Subsidiaries (or, at and after the Effective Time, Parent and its Subsidiaries) to make payments after the date hereof in excess of $10,000,000, (B) imposes any continuing material non-monetary obligations (other than customary confidentiality obligations) on the Company or its Subsidiaries (or, at and after the Effective Time, Parent and its Subsidiaries), (C) involves the admission of criminal wrongdoing by the Company or its Subsidiaries (or, at and after the Effective Time, Parent and its Subsidiaries) or (D) is not otherwise described in clauses (i)-(xi) above that is material to the Company; orwith any Governmental Authority;
(xiii) any contract Contract with any Governmental Authority involving payments to or by the Company or its Subsidiaries in an amount exceeding $1,000,000 in any calendar year during the term thereof;
(xiv) any Real Property Lease;
(xv) any Company Affiliate Contract;
(xvi) any Contract pursuant to which the Company or any of its Subsidiaries spent or received, in the aggregate, more than $10,000,000 during the twelve (12) months prior to the date hereof or could reasonably be expected to spend or receive, in the aggregate, more than $10,000,000 during the twelve (12) months immediately after the date hereof (including any Contract relating to material any future capital expenditures by the Company IPor any of its Subsidiaries); and
(xvii) each Contract (including any side letters) governing or otherwise materially amending, modifying, supplementing any of the Exchangeable Notes Indenture or any of the Exchangeable Notes Hedge Obligations.
(b) Except for breaches, violations or defaults which would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect (or any breaches under any such Material Contract that arise by virtue of such Contracts having been shared with any Member), or as set forth on Section 4.21(b) of the Company Disclosure Schedule, as of the date hereof (i) All of the each Material Contracts are Contract is valid and binding on the Company or its Subsidiaries, enforceable against it in accordance with its terms, and are in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium effect and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the Company or nor any Subsidiary norof its Subsidiaries, nor to the knowledge of the Company’s Knowledge any other party to any such Contract, any third party is in violation of any provision of, thereof and no event has occurred that with the lapse of time or failed to perform any obligation required under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither giving of notice or both would constitute a default thereunder by the Company or any Subsidiary norof its Subsidiaries, or, to the knowledge Knowledge of the Company, any third partyother party thereto. To the Knowledge of the Company, is as of the date hereof, neither the Company nor any of its Subsidiaries has received, as of the date of this Agreement, any notice in breach, writing to terminate or has received written notice of material breach, of not renew any Material ContractContract that would be material to the Company and its Subsidiaries, except taken as disclosed in Schedule 3.13a whole.
Appears in 2 contracts
Sources: Merger Agreement (Washington Dennis R), Merger Agreement (Atlas Corp.)
Material Contracts. (a) For purposes of Except for this Agreement, “Material Contract” shall mean the Company Benefit Plans or Contracts filed by the Company with the SEC as exhibits to its Annual Report on Form 10-K for the fiscal year ended December 31, 2005 or to subsequent Exchange Act reports filed prior to the date hereof, Section 3.21 of the Company Disclosure Letter sets forth all of the following Contracts to which the Company or any Subsidiary of its Subsidiaries is a party or any of their assets are bound:by which it is bound (the “Company Material Contracts”):
(i) any Contracts that are a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act), whether or not filed by SEC) to the Company with the CommissionCompany;
(ii) Contracts that contain any provision that prior to or following the Effective Time would by its terms materially restrict or alter the conduct of business of, or purport to materially restrict or alter the conduct of business of the Company or any of its Subsidiaries, Parent or, to the Company’s Knowledge, any Affiliate of Parent (other than any director, officer or employee of any of the Company or any of its Subsidiaries);
(iii) Contracts for partnerships, joint ventures or strategic alliances;
(iv) Contracts in an amount in excess of Two Hundred Fifty Thousand Dollars ($250,000) per year (A) for the acquisition, sale or lease of material properties or assets (by merger, purchase or sale of stock or assets or otherwise) entered into since January 1, 2004, other than in the ordinary course of business, (B) that grant to any Person any preferential rights to purchase any of its properties or assets or (C) relating to the acquisition by the Company or any of its Subsidiaries of any operating business or the capital stock of any other Person;
(v) Loan or credit agreements, mortgages, indentures, notes or other Contracts or instruments evidencing indebtedness for borrowed money by the Company or any of its Subsidiaries or any Contract or instrument pursuant to which indebtedness for borrowed money may be incurred or is guaranteed by the Company or any of its Subsidiaries;
(vi) Contracts relating to the license of material Company Intellectual Property to a third Person;
(vii) Mortgages, pledges, security agreements, deeds of trust or other Contracts granting a Lien on any material real property or any material property or assets of the Company or any of its Subsidiaries;
(viii) Company real property leases and all leases related to any material tangible personal property of the Company or any of its Subsidiaries;
(ix) Contracts, purchase agreements or other similar documents that obligate the Company or any of its Subsidiaries in an amount in excess of Two Hundred Fifty Thousand Dollars ($250,000) per year or for which another Person is obligated to the Company or any of its Subsidiaries in excess of such amount;
(x) Collective bargaining agreements or other Contracts with any labor union and employment Contracts (other than for employment at-will or consulting contract similar arrangements) that are not terminable by the Company without notice and without cost to the Company;
(xi) Contracts for indemnification or guarantees that are or could be material to the Company and its Subsidiaries, taken as a whole (in each case with respect to case, under which the Company or any of its Subsidiaries has continuing obligations as of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000);
(iiixii) Contracts that give any contract providing for indemnification guarantee or any guaranty by warranty of products or services of the Company, in each case that is material to the CompanyCompany or its Subsidiaries, other than any contract providing for indemnification of customers warranty or other Persons pursuant to contracts entered into guarantee implied by Law or consistent with those offered by the Company in the ordinary course of business;; and
(ivxiii) Contracts that (A) grant any contract that purports exclusive distribution agreement or supply agreement or other exclusive rights, (B) grant any “most favored nation” rights, rights of first refusal, rights of first negotiation or similar rights with respect to limit in any material respect the right of the Company (x) to engage in any line of businessproduct, or (yC) to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value in excess of $250,000;
(vi) any contract that contains contain any provision that requires the purchase of all or a given portion of the Company’s or any of its Subsidiaries’ requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IPprovision.
(b) (i) All The Company has heretofore made available to Parent correct and complete copies of each Company Material Contract in existence as of the date hereof, together with any and all amendments and supplements thereto and material “side letters” and similar documentation relating thereto; (ii) each Company Material Contracts are valid Contract is valid, binding and binding on the Company or its Subsidiaries, in full force and effect and is enforceable against it in all material respects in accordance with its terms, and are in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither terms by the Company or any Subsidiary nor, to the knowledge of the Company, any third and its Subsidiaries party is in violation of any provision of, or failed to perform any obligation required under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 thereto; and (iii) neither the Company or nor any Subsidiary nor, to the knowledge of the Company, any third party, its Subsidiaries is in breachdefault under, or has received written notice of material breachof, or otherwise has Knowledge of, the existence of any event or condition which constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any such Company Material Contract, except as disclosed where such defaults would not, individually or in Schedule 3.13the aggregate, have a Company Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Altra Holdings, Inc.), Merger Agreement (Tb Woods Corp)
Material Contracts. (a) For purposes As of the date of this Agreement, “Material Contract” shall mean the following to which except for (i) this Agreement, (ii) the Company Employee Benefit Plans, (iii) contracts filed as an exhibit to or incorporated by reference in a Company SEC Document filed prior to the date hereof, (iv) contracts related to properties or operations that have been sold or otherwise disposed of or are in the process of being sold or otherwise disposed of to the extent such sales and/or dispositions have been disclosed in the Company SEC Reports, or (v) as set forth on Section 2.21(a) of the Company Schedule, neither the Company nor any Subsidiary of its subsidiaries is a party to or bound by any of their assets are boundcontract (whether written or oral) which is:
(iA) any a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities ActSEC), whether or not filed by the Company with the Commission;
(iiB) a loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture or other binding commitment (other than those between the Company and its subsidiaries) relating to indebtedness in an amount in excess of $5 million individually;
(C) a contract, lease or license (including any employment or consulting contract seismic license agreements) (in each case with respect x) pursuant to which the Company has continuing obligations as or any of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary its subsidiaries paid amounts in excess of $200,000;
5 million individually within the 12 month period prior to the date of this Agreement or (iiiy) any contract providing for indemnification or any guaranty by the Company, in each case that is material to the Company, other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course of businessCompany and its subsidiaries taken as a whole;
(ivD) any contract that a contract, which to the knowledge of the Company purports to materially limit in any material respect the right of the Company (x) or any of its affiliates to engage or compete in any line of business, business in which the Company or (y) its subsidiaries is engaged or to compete with any Person person or operate in any geographical location;
(vE) a contract that creates a partnership or joint venture or similar arrangement with respect to any contract relating significant portion of the business of the Company and its subsidiaries taken as a whole; or
(F) a settlement or similar agreement with any Governmental Entity or order or consent of a Governmental Entity to which the disposition Company or acquisition, directly or indirectly (by merger or otherwise), any of its subsidiaries is subject involving future performance by the Company or any of assets its subsidiaries which is material to the Company and its subsidiaries taken as a whole. All contracts of the type described in this Section 2.21(a) together with a fair market value in excess the contracts for the sale of $250,000;
(vi) Hydrocarbons produced from any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to its subsidiaries’ properties described in the Company;
(viiReserve Reports that are not terminable on 60 days’ notice and are set forth on Section 2.21(a) any contract that obligates of the Company Schedule, are referred to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to herein as the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the “Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IPMaterial Contracts”.
(b) Other than as a result of the expiration or termination of any Company Material Contract in accordance with its terms and except as would not have, either individually or in the aggregate, a Company Material Adverse Effect, (i) All of the each Company Material Contracts are Contract is valid and binding on the Company or and any of its Subsidiariessubsidiaries that is a party thereto, enforceable against it in accordance with its termsas applicable, and are in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the Company or any Subsidiary nor, and each of its subsidiaries has in all material respects performed all obligations required to the knowledge of the Company, any third party is in violation of any provision of, or failed be performed by it to perform any obligation required date under the provisions of, any each Company Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the Company or nor any Subsidiary nor, to the of its subsidiaries has knowledge of the Company, any third party, is in breachof, or has received written notice of material breachof, the existence of any event or condition which constitutes, or, after notice or lapse of time or both, will constitute, a material default on the part of the Company or any of its subsidiaries or their counterparties under any such Company Material Contract, except as disclosed in Schedule 3.13.
Appears in 2 contracts
Sources: Merger Agreement (Pogo Producing Co), Merger Agreement (Plains Exploration & Production Co)
Material Contracts. (a) For purposes Section 3.9(a) of the Company Disclosure Schedules sets forth a list of the following Contracts to which a Group Company is, as of the date of this Agreement, a party (each Contract required to be set forth on Section 3.9(a) of the Company Disclosure Schedules, together with each of the Contracts entered into after the date of this Agreement that would be required to be set forth on Section 3.9(a) of the Company Disclosure Schedules if entered into prior to the execution and delivery of this Agreement, collectively, the “Material Contract” shall mean the following to which the Company or any Subsidiary is a party or any of their assets are bound:Contracts”):
(i) any “material contract” Contract relating to Indebtedness of any Group Company or to the placing of a Lien (as such term is defined other than any Permitted Lien) on any assets or properties of any Group Company, in Item 601(b)(10) of Regulation S-K of the Securities Act)each case, whether or not filed by the Company with the Commissionother than ordinary course trade payables;
(ii) any employment Contract under which any Group Company is lessee of or consulting contract (holds, in each case with respect to which the Company has continuing obligations as of the date hereof) with case, any current or former tangible property (x) executive officer of the Companyother than real property), (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000owned by any other Person;
(iii) any contract providing for indemnification Contract under which any Group Company is lessor of or permits any guaranty by the Companythird party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by such Group Company;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract and (B) any Contract with respect to material Company Licensed Intellectual Property (other than (I) any Contract of the type described in Section 3.15(c)(i), (II) licenses to Off-the-Shelf Software, (III) licenses to Public Software, and (IV) non-disclosure agreements and licenses granted by employees, individual consultants or individual contractors of any Group Company pursuant to Contracts with employees, individual consultants or individual contractors);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of any Group Company 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 MEOA 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 any Group Company to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer in any material respect or that would so limit or purports to limit, in any material respect, MEOA 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 any Group Company in an amount in excess of (A) $100,000 annually, or (B) $100,000 over the life of the agreement;
(vii) any Contract requiring any Group Company 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 Group Company;
(viii) any Contract under which any Group Company has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.21 of the Company Disclosure Schedules;
(x) any Contract with any Person under which any Group Company 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 Company Product or any Intellectual Property Rights;
(xi) 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 $100,000, or (B) that is material provides for severance or any other post-termination payments or benefits;
(xii) any Contract governing the terms of, or otherwise related to, the employment, engagement or services of any former director, manager, officer, employee, or Contingent Worker of a Group Company pursuant to the which any Group Company, as of the Closing, has or will have an obligation to pay severance or other post-termination pay;
(xiii) any Contract providing for any Change of Control Payment of the type described in clause (a) of the definition thereof;
(xiv) any collective bargaining agreements and any other agreements executed with a union or similar organization;
(xv) any Contract for the disposition of any portion of the assets or business of any Group Company or for the acquisition by any Group Company of the assets or business of any other Person (other than any contract providing for indemnification of customers acquisitions or other Persons pursuant to contracts entered into dispositions made in the ordinary course of business), or under which any Group Company has any continuing obligation with respect to an “earn-out”, contingent purchase price or other contingent or deferred payment obligation;
(ivxvi) any contract Contract for the settlement or conciliation of a prior Proceeding or other dispute with a third party (A) the performance of which would be reasonably likely to involve any payments after the date of this Agreement, (B) with a Governmental Entity, or (C) that purports imposes or is reasonably likely to limit impose, at any time in the future, any material respect material, non-monetary obligations on any Group Company (or MEOA or any of its Affiliates after the right of the Company Closing);
(xvii) any Contract with any (x) to engage in any line of business, Material Customer or (y) to compete with any Person or operate in any geographical locationMaterial Supplier;
(vxviii) any contract relating Contract with any Governmental Entity;
(xix) any Contract granting an exclusive or other material license in and to Company Licensed Intellectual Property, other than licenses for Off-the-Shelf Software;
(xx) any Contract granting an exclusive or other material license in and to any Company-Owned Intellectual Property, other than incidental licenses granted in the disposition ordinary course of business; and
(xxi) any other Contract the performance of which requires either (A) annual payments to or acquisition, directly or indirectly (by merger or otherwise), by the from any Group Company of assets with a fair market value in excess of $250,000;
100,000 or (viB) aggregate payments to or from any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Group Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000100,000 over the life of the agreement and, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which each case, that is not otherwise described in clauses terminable by the applicable Group Company without penalty upon less than thirty (i)–(x30) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IPdays’ prior written notice.
(b) (i) All of the Each Material Contracts are Contract is valid and binding on the applicable Group Company or its Subsidiariesand, to the Company’s knowledge, the counterparties thereto, and is in full force and effect and enforceable against it in accordance with its termsterms against the applicable Group Company and, and are in full force and effectto the Company’s knowledge, the counterparties thereto (subject to laws of general application relating to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or other Laws affecting generally the enforcement of creditors’ rights generally and rules subject to general principles of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policyequity), (ii) neither the applicable Group Company or any Subsidiary norand, to the knowledge of Company’s knowledge, the Company, any third party is counterparties thereto are not in violation of any provision material breach of, or failed to perform any obligation required under the provisions ofdefault under, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither no event has occurred that (with or without due notice or lapse of time or both) could reasonably be expected to result in a material breach of, or default under, any Material Contract by the applicable Group Company or any Subsidiary noror, to the knowledge Company’s knowledge, the counterparties thereto.
(c) Section 3.9(c) of the Company Disclosure Schedules sets forth a list of each of the Material Suppliers and the Material Customers. Since July 31, 2021, no such Material Supplier or Material Customer has canceled, terminated or materially and adversely altered its relationship with the Company, any third partyor to the Company’s knowledge, is threatened in breach, writing to cancel or has received written notice of terminate its relationship with the Company. There have been no material breach, of disputes between the Company and any Material Contract, except as disclosed in Schedule 3.13Supplier or Material Customer since the date of the Latest Balance Sheet.
Appears in 2 contracts
Sources: Business Combination Agreement (Digerati Technologies, Inc.), Business Combination Agreement (Minority Equality Opportunities Acquisition Inc.)
Material Contracts. (a) For purposes of this Agreement, “Material Contract” shall mean the following to which Neither the Company or any Subsidiary is a party or nor any of their assets are boundits Subsidiaries is party to or bound by any:
(i) any Contracts that would be required to be filed by the Company as a “material contract” (as such term is defined in pursuant to Item 601(b)(10) of Regulation S-K of under the Securities Act), whether or not filed by the Company with the Commission;
(ii) Contracts relating to any employment partnership, strategic alliance or consulting contract (in each case with respect joint venture that is material to which the Company has continuing obligations and its Subsidiaries, taken as of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000a whole;
(iii) any contract providing for indemnification Contracts pursuant to which the Company or any guaranty by Subsidiary of the CompanyCompany (A) has any material continuing “earn-out” or other material contingent payment obligations or (B) has any material indemnification obligations that, in each case that is material to the Companyeither case, other than any contract providing for indemnification of customers or other Persons pursuant to contracts were not entered into in the ordinary course of business;
(iv) any contract Contracts that purports to (i) limit in any material respect the right ability of the Company (x) or any of its Subsidiaries to engage compete with or to provide services in any line of business, business or (y) to compete with any Person or operate in any geographical locationgeographic area or market segment or (ii) provide any standstill, “most favored nation” provision or equivalent preferential pricing terms, exclusivity or similar obligations to which the Company or any of its Subsidiaries is subject or a beneficiary thereof, which, in the case of clauses (i) and (ii), is material to the Company and its Subsidiaries taken as a whole;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value in excess of $250,000Contracts that are material Collective Bargaining Agreements;
(vi) Contracts with (A) any contract that contains beneficial owner (as defined in Rule 13d-3 under the ▇▇▇▇ ▇▇▇) of 5% or more of any provision that requires the purchase class of all securities of the Company’s requirements for a given product Company or service from a given third partyany Company Subsidiary or (B) any Affiliate or “associate” or any member of the “immediate family” (as such terms are respectively defined in Rules 12b-2 and 16a-1 of the ▇▇▇▇ ▇▇▇) of any of the foregoing, which product including any shareholders agreement, investors’ rights agreement, registration rights agreement, tax receivables agreement (other than the Tax Receivable Agreement) or service is material to the Companysimilar or related Contracts;
(vii) Contracts that (A) are a material indenture, loan or credit Contract, loan note, mortgage Contract, letter of credit or other Contract representing, or any contract that obligates guarantee of, indebtedness for borrowed money of the Company to conduct business on an exclusive or preferential basis with any third party;Subsidiary of the Company in excess of $5,000,000, (B) is a guarantee by the Company or any Subsidiary of the Company of any indebtedness for borrowed money or similar obligation of any Person other than the Company or a wholly-owned Subsidiary of the Company or (C) that become due and payable as a result of the transactions contemplated hereby; or
(viii) Contracts pursuant to which the Company or any partnershipof its Subsidiaries (i) obtain the right to use, joint venture or similar contract a covenant not to be sued under, any Intellectual Property (other than non-exclusive licenses for commercially available off-the-shelf software that is generally available for an annual cost of less than $100,000) or (ii) grants the right to use, or a covenant not to be sued under, Intellectual Property, in the case of each of clauses (i) and (ii), that is material to the Company;
(ix) any mortgagesCompany and its Subsidiaries, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether taken as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IPa whole.
(b) The Company has made available to Parent prior to the date hereof a complete and correct copy of each Contract listed or required to be listed in Section 5.20(a) of the Company Disclosure Schedule (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, (i) All each of the Material Contracts are valid is valid, binding and binding on the Company or its Subsidiaries, enforceable against it in accordance with its terms, and are in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium effect and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the Company or nor any Subsidiary norof its Subsidiaries, nor to the knowledge Knowledge of the Company, any third other party is in violation of to a Material Contract, has breached or violated any provision of, or taken or failed to perform take any obligation required act which, with or without notice, lapse of time, or both, would constitute a breach or default under the provisions ofof such Material Contract, and since January 1, 2015, neither the Company nor any of its Subsidiaries has received notice that it has breached, violated or defaulted under any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the Company or any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or has received written notice of material breach, of any Material Contract, except as disclosed in Schedule 3.13.
Appears in 2 contracts
Sources: Merger Agreement (Tyson Foods Inc), Merger Agreement (Tyson Foods Inc)
Material Contracts. Except for any Government Contract or Government Bid that are set forth instead on Section 4.16(a) of the Company Disclosure Letter, Section 4.15(a) of the Company Disclosure Letter sets forth the following (a) For purposes each of this Agreementwhich, together with each Lease shall constitute a “Material Contract” shall mean the following to which the Company or any Subsidiary is a party or any of their assets are bound:”):
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of promulgated by the Securities ActSEC), whether or not filed by the Company with the CommissionSEC;
(ii) any employment or consulting contract Contract (in each case with respect to which the Company or a Subsidiary of the Company has continuing obligations as of the date hereof) with any current or former (xA) executive officer of the Company, (yB) member of the Board of DirectorsCompany Board, or (zC) Company employee Employee providing for an annual base salary or payment in excess of $200,000100,000;
(iii) any contract Contract providing for indemnification or any guaranty by the CompanyCompany or any Subsidiary thereof, in each case that is material to the CompanyCompany and its Subsidiaries, taken as a whole, other than any contract Contract providing for indemnification of third party claims under Contracts with customers or other Persons pursuant to contracts entered into in the ordinary course of business;
(iv) any contract Contract that purports to limit in any material respect the right of the Company or any of its Subsidiaries (xor, at any time after the consummation of the Merger, Parent or any of its Subsidiaries) to (A) engage in any line of business, or (yB) to compete with any Person or solicit any client or customer, or (C) operate in any geographical location;
(v) any contract Contract relating to the disposition or acquisition, directly or indirectly (by merger merger, sale of stock, sale of assets, or otherwise), by the Company or any of its Subsidiaries of assets or capital stock or other equity interests of any Person (A) with a fair market value or aggregate consideration under such Contract in excess of $250,0001,000,000 and (B) pursuant to which the Company or any of its Subsidiaries has a continuing material earn-out or other contingent payment obligation or any material indemnification obligation;
(vi) any contract Contract that grants any right of first refusal, right of first offer, or similar right with respect to any material assets, rights, or properties of the Company or any of its Subsidiaries;
(vii) any Contract that contains any provision that requires the purchase of all or a material portion of the Company’s or any of its Subsidiaries’ requirements for a given product or service from a given third party, which product or service is material to the CompanyCompany and its Subsidiaries, taken as a whole;
(viiviii) any contract Contract that obligates the Company or any of its Subsidiaries to conduct business on an exclusive or preferential basis or that contains a “most favored nation” or similar covenant with any third party or upon consummation of the Merger will obligate Parent, the Surviving Corporation, or any of their respective Subsidiaries to conduct business on an exclusive or preferential basis or that contains a “most favored nation” or similar covenant with any third party;
(viiiix) any partnership, joint venture venture, limited liability company agreement, or similar contract that is material Contract relating to the formation, creation, operation, management, or control of any material joint venture, partnership, or limited liability company, other than any such Contract solely between the Company and its wholly owned Subsidiaries or among the Company’s wholly owned Subsidiaries;
(ixx) any mortgages, indentures, guarantees, loans loans, or credit agreements, security agreements agreements, or other contractsContracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than (A) accounts receivables and payables, (B) loans to Subsidiaries of the Company, or (C) for principal amounts less than $250,000;
(xxi) any employee collective bargaining agreement or other contract Contract with any labor union;
(xixii) any Company IP Agreement, other contract under which than licenses for shrinkwrap, clickwrap, or other similar commercially available off-the-shelf software that has not been modified or customized by a third party for the Company or any of its Subsidiaries;
(xiii) any Contract that is obligated a settlement or similar Contract involving payments by the Company or its Subsidiaries after the Closing or any injunctive or similar equitable obligations that impose material restrictions on the Company or any of its Subsidiaries;
(xiv) any Contract providing for (A) payment by any Person to make payment the Company or incur costs any of its Subsidiaries in excess of $250,000 150,000 annually on account of products or services rendered by the Company or any of its Subsidiaries or (B) the purchase of products or services by the Company or any of its Subsidiaries from any Person in any year and excess of $150,000 annually, in either case, which is not otherwise described in clauses (i)–(xi)–(xiii) above;; provided, that if any such Contract is a purchase order, such purchase order need not be listed on Section 4.15(a) of the Company Disclosure Letter, but shall be deemed to be a Material Contract for purposes of this Agreement; or
(xiixv) any contract Contract which is not otherwise described in clauses (i)-(xii)-(xiv) above that is material to the Company; or
(xiii) any contract relating to material Company IP.
(b) (i) All of the Material Contracts are valid and binding on the Company or its Subsidiaries, enforceable against it in accordance with its terms, and are in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the Company or any Subsidiary nor, to the knowledge of the Company, any third party is in violation of any provision of, or failed to perform any obligation required under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the Company or any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or has received written notice of material breach, of any Material Contract, except as disclosed in Schedule 3.13its Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (CRAWFORD UNITED Corp), Merger Agreement (CRAWFORD UNITED Corp)
Material Contracts. (a) For purposes Except for this Agreement, the Plans and the ESPP, as of the date of this Agreement, “Material Contract” shall mean the following to which neither the Company or nor any Subsidiary of the Company is a party or to any of their assets are boundContract:
(i) any required to be filed by the Company in the Company SEC Reports as a “material contract” (as such term is defined in pursuant to Item 601(b)(10) of Regulation S-K of under the Securities Act), whether or Act that has not filed by the Company with the Commissionbeen so filed;
(ii) any employment that (A) limits, or consulting contract (in each case with respect purports to which materially limit, the ability of the Company has continuing obligations as or any of the date hereof) its Affiliates to compete in any line of business or within any geographic area or with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, Person or (zB) contains any exclusivity or similar provision binding upon the Company employee providing for an annual base salary in excess of $200,000;
(iii) any contract providing for indemnification or any guaranty by the Company, in each case of its Subsidiaries that is material to the Company’s business, taken as a whole;
(iii) relating to Indebtedness for borrowed money for a principal amount in excess of $1,000,000, other than Contracts among the Company or its Subsidiaries;
(iv) between the Company and any contract providing for indemnification of customers its directors, officers or Affiliates (other than (x) Contracts not material to the conduct of the business of the Company and its Subsidiaries, or (y) any Contract solely between or among the Company or its Subsidiaries);
(v) that is a license, sublicense, assignment, option or other Persons Contract relating to the Company’s material Intellectual Property Rights, including any such Contract pursuant to which the Company or any of its Subsidiaries is granted any right to use, is restricted in its rights to use or register or permits any other Person to use, enforce or register any Intellectual Property Rights of the Company (other than any enterprise software license or other license to use commercial off-the-shelf computer software under nondiscriminatory pricing terms or licenses contained in service contracts entered into to the extent the licenses contained therein are incidental to such contract, non-exclusive and granted in the ordinary course of business);
(ivvi) that provides for any contract that purports most favored nation provision or equivalent preferential pricing terms or similar obligations to limit in any material respect the right of which the Company or any of its Affiliates is subject, which is material to the Company and the its Subsidiaries;
(vii) that is a purchase, sale or supply Contract that (x) to engage in any line of businesscontains volume requirements or commitments, exclusive or preferred purchasing arrangements or promotional requirements and (y) to compete with any Person or operate has more than one year remaining in any geographical locationthe term of the Contract and requires in excess of $1,000,000 in remaining obligations;
(vviii) any contract relating involving future payments, capital expenditures, performance of services or delivery of goods or materials to or by the disposition Company and its Subsidiaries of an amount or acquisitionvalue reasonably expected to exceed $1,000,000 in the aggregate during the 12 month period following the date hereof;
(ix) entered into during the past three years involving the acquisition or disposition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value business or capital stock or other equity interests of another Person for aggregate consideration (in excess one or a series of related transactions) under such Contract of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product 1,000,000 or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payablesmore;
(x) any employee that is a collective bargaining agreement or other contract Contract with any labor unionunion or other employee representative or group;
(xi) any other contract under which that is a partnership or joint venture agreement or similar Contract or relates to an equity investment that in each case is material to the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) aboveits Subsidiaries;
(xii) that is for a lease, use or occupancy of real or personal property of the Company or its Subsidiaries providing for annual rentals of $1,000,000 or more;
(xiii) involving the payment of royalties or other amounts calculated based upon the revenues or income of the Company or any contract of its Subsidiaries or income or revenues related to any product of the Company or any of its Subsidiaries, which is likely to involve the payment of consideration of more than $1,000,000 in the aggregate over the remaining term of such Contract;
(xiv) with any Governmental Entity to which the Company or any of its Subsidiaries is a party, other than individual Contracts involving aggregate consideration during the term of the Contract of less than $1,000,000;
(xv) 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 $1,000,000 and in each case has not otherwise described in clauses (i)-(xi) above that is material been repaid prior to the Companydate hereof; or
(xiiixvi) that commits the Company or any contract relating of its Affiliates to material enter into any of the foregoing. Each such Contract in clause (i) through clause (xvi) is referred to herein as a “Company IPMaterial Contract.”
(b) Except as would not reasonably be expected to be material to the Acquired Companies, taken as a whole, (i) All of the each Company Material Contracts are Contract is valid and binding on the Company or its Subsidiaries, enforceable against it in accordance with its terms, Subsidiaries and are in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policyexcept as enforceability may be limited by the Enforceability Exceptions, (ii) neither the Company or any Subsidiary norno Acquired Company, nor to the knowledge of the Company, any third other party to a Company Material Contract is in breach or violation of any provision of, or default under, or has taken or failed to perform take any obligation required action which, with or without notice, lapse of time, or both, would constitute a default under the provisions of, any Company Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the Acquired Companies have not received any written claim or notice of default under any Company Material Contract and (iv) the Company or has not received any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or has received written notice of material breach, of in writing from any person that such person intends to terminate any Company Material Contract, except as disclosed in Schedule 3.13.
Appears in 2 contracts
Sources: Merger Agreement (Innoviva, Inc.), Merger Agreement (Entasis Therapeutics Holdings Inc.)
Material Contracts. (a) For purposes Section 3.21(a) of this Agreementthe Company Letter contains a true, “Material Contract” shall mean complete and correct list of the following Contracts to which the Company or any Subsidiary of its Subsidiaries is a party or by which any property or asset of the Company or any of their assets are its Subsidiaries is bound:, in each case as of the date of this Agreement, other than Company Plans listed in Section 3.18(a) of the Company Letter (collectively, the “Material Contracts”):
(i) each Contract that limits in any material respect the freedom of the Company, any of its Subsidiaries or any of its Affiliates to compete or engage in any line of business or geographic region or with any Person, sell, supply or distribute any product or service or that otherwise has the effect of restricting in any material respect the Company, its Subsidiaries or Affiliates, taken as a whole, from the development, marketing or distribution of products and services;
(ii) each partnership, 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 Contract that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract entered into since December 31, 2014: (A) relating to the disposition or acquisition by the Company or any of its Subsidiaries of any business (whether by merger, amalgamation, consolidation or other business combination, sale of assets, sale of shares in the share capital or other voting securities, tender offer, exchange offer, or similar transaction); or (B) pursuant to which the Company or any of its Subsidiaries will acquire or is obligated to acquire any ownership interest or make an investment (other than the Company or any of its Subsidiaries), in each case, other than such Contracts that are immaterial to the Company and its Subsidiaries, taken as a whole;
(iv) each Contract with respect to the acquisition or disposition of any Person (whether by merger, amalgamation, consolidation or other business combination, sale of assets, sale of shares in the share capital or other voting securities, tender offer, exchange offer, or similar transaction) pursuant to which the Company or any of its Subsidiaries has (A) material continuing indemnification obligations (other than in the ordinary course of business in connection with the development, sale or licensing of Company Products) or (B) any “earn-out” or similar contingent payment obligations, in each case (x) other than any such obligations that are immaterial to the Company and its Subsidiaries, taken as a whole or (y) other than any Contract that provides solely for the acquisition or disposition of inventory, raw materials, equipment or products in the ordinary course of business;
(v) any and all Contracts required to be listed on (A) Section 3.16(f) or (B) Section 3.16(g) of the Company Letter;
(vi) each Contract that grants any right of first refusal or right of first offer in favor of a Third Party or that materially limits the ability of the Company, any of its Subsidiaries or any of its Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any material businesses or material assets;
(vii) each Contract pursuant to which a third party is granted any exclusivity rights (other than customization work for customers relating to Company Products) or “most favored nations” provisions or minimum use, supply or display requirements that is binding on the Company or its Affiliates, in each case, which Contract is not terminable by the Company and each of its Affiliates party to such Contract upon ninety (90) or less days’ notice by the Company or its relevant Affiliates without the requirement of any payment, penalty, premium, fee, liability or other obligations;
(viii) other than instruments providing for indebtedness that would not, in the aggregate, exceed One Million Dollars ($1,000,000), each Contract that (A) is an indenture, credit agreement, loan agreement, security agreement, guarantee of, note, mortgage or other agreement providing for indebtedness (including obligations under any capitalized leases but excluding agreements between the Company and any wholly owned Subsidiary of the Company or between wholly owned Subsidiaries of the Company) or pursuant to which the Company or any of its Subsidiaries guarantees any such indebtedness of any other Person (other than the Company or another wholly owned Subsidiary of the Company), (B) materially restricts the Company’s and its Subsidiaries’ (taken as a whole) ability to incur indebtedness or guarantee the indebtedness of others, (C) grants a Lien (other than a Permitted Lien) or restricts the granting of Liens on any property or asset of the Company or its Subsidiaries that is material to the Company and its Subsidiaries, taken as a whole or (D) is an interest rate derivative, currency derivative, forward purchasing, swap or other hedging contract;
(ix) each collective bargaining agreement and each Contract with any labor union, works council or similar organization;
(x) each Contract that provides for a settlement or conciliation (A) with any Governmental Authority that materially (1) restricts or imposes material obligations upon the Company or its Subsidiaries (taken as a whole) or (2) materially disrupts the business of the Company and its Subsidiaries (taken as a whole) as currently conducted or (B) that would require the Company or any of its Subsidiaries to pay consideration of more than Five Hundred Thousand Dollars ($500,000) after the date of this Agreement; and
(xi) each Contract not otherwise described in any other subsection of this Section 3.21(a) that would constitute a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act), whether or not filed as promulgated by the Company with the Commission;
(iiSEC) any employment or consulting contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000;
(iii) any contract providing for indemnification or any guaranty by the Company, in each case that is material to the Company, other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course of business;
(iv) any contract that purports to limit in any material respect the right of the Company (x) to engage in any line of business, or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IP.
(b) A true, correct and complete copy of each Material Contract in effect as of the date of this Agreement has been made available to Parent and Buyer or publicly filed with the SEC prior to the date of this Agreement. Except for matters that would not have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) All each Material Contract is a valid, binding and enforceable obligation of the Material Contracts are valid and binding on the Company or one of its Subsidiaries, enforceable against it on the one hand, and, to the knowledge of the Company as of the date of this Agreement, of the other party or parties thereto, on the other hand, in accordance with its terms, subject to the Enforceability Exceptions, and are each Material Contract is in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the Company and each of its Subsidiaries has performed all obligations required to be performed by it under each Material Contract to date and, to the knowledge of the Company as of the date of this Agreement, each other party to each Material Contract has performed all obligations required to be performed by it under such Material Contract to date, (iii) as of the date of this Agreement, none of the Company or any Subsidiary norof its Subsidiaries has received written notice of any, and, to the knowledge of the Company, any third party is in violation none of any provision of, or failed to perform any obligation required under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the Company or any Subsidiary norof its Subsidiaries is in, to default or material breach under (nor does there exist any condition which upon the knowledge passage of time or the giving of notice or both would cause such a default or material breach under) any Material Contract and (iv) as of the Companydate of this Agreement, neither the Company nor any of its Subsidiaries has received any written notice from any other party to any such Material Contract that such party intends to terminate, or not renew, any third party, is in breach, or has received written notice of material breach, of any such Material Contract, except as disclosed in Schedule 3.13.
Appears in 2 contracts
Sources: Purchase Agreement (Mobileye N.V.), Purchase Agreement (Intel Corp)
Material Contracts. (a) For purposes Subsections (i) through (viii) of this Agreement, “Material Contract” shall mean Section 3.16 of the Company Disclosure Schedule contain a list of the following types of contracts and agreements to which the Company or any Subsidiary of its Subsidiaries is a party or any (such contracts, agreements and arrangements as are required to be set forth in Section 3.16(a) of their assets are bound:the Company Disclosure Schedule being the "Material Contracts"):
(i) any “material each contract and agreement which is likely to involve consideration of more than $25,000, in the aggregate, over the remaining term of such contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act), whether or not filed by the Company with the Commission;
(ii) any employment all material broker, distributor, dealer, franchise, agency, sales promotion, market research, marketing, consulting, advertising, transfer, software, and research and development contracts or consulting contract (in each case with respect agreements to which the Company has continuing obligations as or any of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000its Subsidiaries is a party;
(iii) any contract providing for indemnification all clinical trial or clinical research organization, manufacturing or supply, collaboration, and guarantee contracts or agreements to which the Company or any guaranty by the Company, in each case that of its Subsidiaries is material to the Company, other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course of businessa party;
(iv) all management contracts (excluding contracts for employment) and contracts with other consultants, including any contract contracts involving the payment of royalties or other amounts calculated based upon the revenues or income of the Company or its Subsidiaries or income or revenues related to any product of the Company or its Subsidiaries to which the Company or any of its Subsidiaries is a party;
(v) all contracts and agreements evidencing indebtedness for borrowed money in excess of $10,000;
(vi) all material contracts and agreements with any Governmental Authority to which the Company or any of its Subsidiaries is a party;
(vii) all contracts and agreements that purports limit, or purport to limit limit, in any material respect the right ability of the Company (x) or its Subsidiaries to engage compete in any line of business, business or (y) to compete with any Person person or operate entity or in any geographical location;
(v) geographic area or during any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company period of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;time; and
(viii) all material contracts or arrangements that result in any partnership, joint venture person or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess entity holding a power of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which attorney from the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IP.
(b) (i) All of the Material Contracts are valid and binding on the Company or its Subsidiaries, enforceable against it in accordance with its terms, and are in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the Company or any Subsidiary nor, to the knowledge of the Company, any third of its Subsidiaries that relates to the Company, its Subsidiaries or their respective businesses.
(b) Except as would not prevent or materially delay consummation of the Merger and would not have a Company Material Adverse Effect, (i) each Material Contract is a legal, valid and binding agreement, the Company is not in material default under any Material Contract and none of the Material Contracts has been canceled by the other party; (ii) to the Company's knowledge, no other party is in breach or violation of any provision of, or failed to perform any obligation required under the provisions ofdefault under, any Material Contract, except as disclosed in Schedule 3.13 and ; (iii) the Company and its Subsidiaries are not in receipt of any claim of default under any such agreement; and (iv) neither the Company execution of this Agreement nor the consummation of the Merger shall constitute a default, give rise to cancellation rights, or otherwise adversely affect any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or has received written notice of material breach, of 's rights under any Material Contract. The Company has furnished or made available to Parent true and complete copies of all Material Contracts, except as disclosed in Schedule 3.13including any amendments thereto.
Appears in 2 contracts
Sources: Merger Agreement (Osi Pharmaceuticals Inc), Merger Agreement (Cell Pathways Inc /De)
Material Contracts. (a) For purposes of this AgreementSchedule 3.11, Part (a) lists all agreements, contracts, arrangements and commitments (collectively, “Material Contract” shall mean the following Contracts”) to which the Company or any Subsidiary is a party or any of their assets and which are boundcurrently in effect and constitute the following:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act)all partnership, whether joint venture or not filed by the Company with the Commissionlimited liability company contract arrangements or agreements;
(ii) any employment all material license agreements or consulting contract (agreements in each case respect of similar rights granted or held, except for licenses with respect to which the Company has continuing obligations as of the date hereof(A) with any current or former (x) executive officer of the Company, (y) member of the Board of Directorspre-packaged software applications, or (zB) Company employee providing for an annual base salary in excess rights to display or use the marks or names of $200,000third parties pursuant to agreements with the Company’s suppliers;
(iii) any contract providing for indemnification or any guaranty by the Company, in each case that is material to the Company, other than any contract providing for indemnification of customers all contracts or other Persons pursuant documents that substantially limit the freedom of the Company to contracts entered into compete in the ordinary course any line of businessbusiness or with any Person or in any geographic area;
(iv) any contract that purports to limit in any material respect the right all agreements or other documents of the Company in respect of borrowed money, including financial instruments of indenture or security instruments (xtypically interest-bearing) to engage in any line such as notes, mortgages, loans and lines of business, or (y) to compete with any Person or operate in any geographical locationcredit;
(v) any contract that requires a consent to or otherwise contains a provision relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company a “change of assets control,” in connection with a fair market value in excess of $250,000this Agreement;
(vi) any contract that contains with any provision that requires the purchase of all officer, director, or shareholder of the Company’s requirements for Company (each, a given product “Related Party”) or service from any contract with any family member or Affiliate of a given third party, which product or service is material to the CompanyRelated Party;
(vii) any contract that obligates providing for indemnification to or from any Person with respect to liabilities relating to any current or former business of the Company to conduct business on an exclusive or preferential basis with any third party;Company; and
(viii) any partnershipall contracts, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contractsdocuments of the Company in respect of property or assets (whether real or personal, tangible or intangible) in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case which the Company holds a leasehold interest with annual payments in excess of Twenty Five Thousand United States Dollars ($250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IP25,000).
(b) Each Material Contract set forth on Schedule 3.11, Part (ia) All of the Material Contracts are is a valid and binding on agreement of the Company or its SubsidiariesCompany, enforceable against it in accordance with its termsterms against the Company and, to the Knowledge of the Company, the other contracting party (subject to the Bankruptcy and Equity Exception), and are is in full force and effect, subject except where the failure of any Material Contract to laws of general application relating be valid, binding, enforceable and in full force and effect, individually or in the aggregate, would not reasonably be expected to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the Company or any Subsidiary nor, be material to the knowledge Company. Neither the Company, nor to the Knowledge of the Company, any third other party is in violation of any provision of, or failed to perform any obligation required under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the Company or any Subsidiary nor, to the knowledge of the Company, any third partythereto, is in breach, or has received written notice of material breach, default under the terms of any Material Contract, except and the Company has made available to the Parent a copy of each Material Contract.
(c) Except as disclosed set forth on Schedule 3.11, Part (b), no consent, approval, waiver or other action by any Person under any Material Contract listed on Schedule 3.11, Part (a) is required or necessary for, or as a result of, the execution, delivery and performance by the Company of this Agreement or any other Transaction Document to which the Company is a party or the consummation by the Company of the transactions contemplated hereby or thereby.
(d) The License & Supply Agreement between the Company and Daewoong, dated as of September 30, 2013 (the “Daewoong Agreement”) is a valid and binding agreement of the Company, enforceable in accordance with its terms against the Company and Daewoong (subject to the Bankruptcy and Equity Exception), and is in full force and effect. Neither the Company nor Daewoong is in default under the terms of the Daewoong Agreement. Except as listed on Schedule 3.133.11(d), no consent, approval, waiver or other action by any Person under the Daewoong Agreement is required or necessary for, or as a result of, the execution, delivery and performance by the Company of this Agreement or any other Transaction Document to which the Company is a party or the consummation by the Company of the transactions contemplated hereby or thereby.
Appears in 2 contracts
Sources: Contribution Agreement (Evolus, Inc.), Contribution Agreement (Evolus, Inc.)
Material Contracts. (a) For purposes Except for this Agreement, as of the date of this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound by, in each case other than any Company Benefit Plan, any Contract, obligation, judgment, injunction, order or decree:
(i) that would be required to be filed by the Company as a “Material Contractmaterial contract” shall mean under Section 12.2 of National Instrument 51-102 – Continuous Disclosure Obligations;
(ii) that contains any provision that materially limits or restricts (or purports to materially limit or restrict) the following ability of the Company or any of its Subsidiaries to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the case may be, in each case, other than the Organizational Documents of the Company and its Subsidiaries;
(iii) other than solely among direct or indirect wholly-owned Subsidiaries of the Company, relating to the creation, incurrence, assumption or guarantee of Indebtedness of the Company and its Subsidiaries in a principal amount that exceeds $2,500,000;
(iv) that is a settlement or similar agreement with any Governmental Authority or order or consent of a Governmental Authority to which the Company or any Subsidiary of its Subsidiaries is a party or any of their assets are bound:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act), whether or not filed subject involving future performance by the Company with the Commission;
(ii) any employment or consulting contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, its Subsidiaries or (z) Company employee providing for an annual base salary in excess of $200,000;
(iii) any contract providing for indemnification or any guaranty by the Companytheir respective Affiliates, in each case that is material to the CompanyCompany and its Subsidiaries, other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course of business;
(iv) any contract that purports to limit in any material respect the right of the Company (x) to engage in any line of business, or (y) to compete with any Person or operate in any geographical locationtaken as a whole;
(v) that (A) limits in any contract relating material respect either the type of business in which the Company, its Subsidiaries and their respective Affiliates may engage or the manner or locations in which any of them may so engage in any business, or (B) grants “most favoured nation” status in a manner that would materially restrict or affect the future business activity of the Company and its Subsidiaries and their respective Affiliates, in each case that is material to the disposition Company and its Subsidiaries, taken as a whole;
(vi) that grants any rights of first refusal, rights of first negotiation or acquisition, directly or indirectly (by merger or otherwise), by other similar rights to any person with respect to the sale of any ownership interest of the Company or its Subsidiaries or any business or assets of assets with the Company and its Subsidiaries, taken as a fair market whole, in each case that is material to the Company and its Subsidiaries, taken as a whole;
(vii) that obligates the Company or any of its Subsidiaries to make any (or any series of related) capital commitment or capital expenditure (excluding capitalized salaries) in excess of $2,500,000 individually after the date hereof through September 1, 2022 or $2,500,000 individually thereafter;
(viii) that requires by its terms or is reasonably likely to require the payment or delivery of cash or other consideration by or to the Company and/or its Subsidiaries in an amount having an expected value in excess of $250,000;
(vi) 2,500,000 in the fiscal year ending August 31, 2021 or in any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates fiscal year thereafter and cannot be cancelled by the Company to conduct business on an exclusive and/or its Subsidiaries without penalty or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Companyfurther payment without more than 180 days’ notice;
(ix) that relates to the formation, creation, governance or control of, or the economic rights or obligations of the Company or any mortgagesof its Subsidiaries in, indenturesany material joint venture, guaranteeslimited liability company, loans or credit agreements, security agreements partnership or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payablessimilar arrangement;
(x) any employee collective bargaining agreement that is a “market access”, “skin” or similar Contract relating to the operation or allocation of revenue with respect to online sports betting or other contract with any labor union;gaming; and
(xi) that (A) relates to the acquisition, disposition or similar business combination transaction of any other contract under business, assets or properties (whether by merger, sale of stock, sale of assets or otherwise) pursuant to which (x) any material earn-out or deferred or contingent payment obligations remain outstanding or (y) a material claim for indemnification may still be made against the Company or any of its Subsidiaries (excluding for breaches of representations and warranties), or (B) relates to any pending acquisition, disposition or similar business combination transaction (whether by merger, sale of stock, sale of assets or otherwise), in each case where the consideration is obligated to make payment or incur costs in excess of $250,000 in 2,500,000. Each Contract constituting any year and which of the foregoing types of Contract (whether or not listed on Section 3.26 of the Company Disclosure Letter) is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material referred to the Company; or
(xiii) any contract relating to material Company IPas a “Material Contract”.
(b) (i) All A true and complete copy of each Material Contract has been made available to Purchaser. Except for expirations in the ordinary course and in accordance with the terms of such Material Contracts are Contract, each Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except as would not have, or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. To the Knowledge of the Company, each Material Contract is enforceable against it by the Company or its Subsidiaries, as applicable, in accordance with its terms, except as may be limited by the Enforceability Exceptions and are except where the failure of such Material Contract to be enforceable would not have, or reasonably be expected to have, individually or in full force and effectthe aggregate, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither a Company Material Adverse Effect. There is no default under any such Material Contracts by the Company or any Subsidiary norits Subsidiaries, or, to the knowledge Knowledge of the Company, any third other party is in violation thereto, and no event has occurred that with the lapse of any provision of, time or failed to perform any obligation required under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither giving of notice or both would constitute a default thereunder by the Company or any Subsidiary norits Subsidiaries, or, to the knowledge Knowledge of the Company, any third partyother party thereto, is in breacheach case, except as would not have, or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries has received any written notice of material breach, challenging the validity or enforceability of any Material ContractContract except where the failure of such Material Contract to be valid or enforceable would not have, except as disclosed or reasonably be expected to have, individually or in Schedule 3.13the aggregate, a Company Material Adverse Effect.
Appears in 2 contracts
Sources: Arrangement Agreement (Score Media & Gaming Inc.), Arrangement Agreement (Penn National Gaming Inc)
Material Contracts. (a) For purposes of this Agreement, “"Material Contract” " shall mean the following to which the Company or any Subsidiary of its Subsidiaries is a party or any of their the respective assets are bound:
(i) any “"material contract” " (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act), whether or not filed by the Company with the CommissionSEC;
(ii) any Lease;
(iii) any employment or consulting contract Contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of DirectorsCompany Board, or (z) Company employee providing for an annual base salary in excess of $200,000Employee;
(iiiiv) any contract Contract providing for indemnification or any guaranty by the CompanyCompany or any Subsidiary thereof, other than (x) any guaranty by the Company or a Subsidiary thereof of any of the obligations of (A) the Company or another wholly-owned Subsidiary thereof or (B) any Subsidiary (other than a wholly-owned Subsidiary) of the Company that was entered into in each case that is material the ordinary course of business pursuant to or in connection with a customer Contract, , (y) any Contract providing for any guaranty by a Person other than the Company with respect to a liability or obligation of the Company, other than or (z) any contract Contract providing for indemnification of customers or other Persons pursuant to contracts Contracts entered into in the ordinary course of business;
(ivv) any contract Contract that purports to limit in any material respect the right of the Company or any of its Subsidiaries (or, at any time after the consummation of the Merger, Parent or any of its Subsidiaries) (x) to engage in any line of business, or (y) to compete with any Person or operate in any geographical location;
(vvi) any contract Contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company or any of its Subsidiaries after the date of this Agreement of assets with a fair market value in excess of $250,000;
other than consumable inventory (vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third partyincluding, which product or service is material to the Companywithout limitation, fibers);
(vii) any contract Contract relating to the repair and maintenance of Company Medical Equipment involving payments by the Company in excess of $50,000 in any year;
(viii) any Contract that obligates the Company or any of its Subsidiaries to conduct business on an exclusive or preferential basis with any third party or upon consummation of the Merger will obligate Parent, the Surviving Corporation or any of their respective Subsidiaries to conduct business on an exclusive or preferential basis with any third party;
(viiiix) any partnership, joint venture or similar contract Contract that is material to the CompanyCompany and its Subsidiaries taken as a whole;
(ixx) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contractsContracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(xxi) any employee collective bargaining agreement or other contract Contract with any labor union;
(xixii) any other contract Contract under which the Company or any of its Subsidiaries is obligated to make payment or incur costs in excess of $250,000 50,000 in any year and which is not otherwise described in clauses (i)–(xi)-(xi) above;
(xiixiii) any contract Contract which is not otherwise described in clauses (i)-(xii)-(xii) above that is material to the CompanyCompany and its Subsidiaries, taken as a whole, and listed on Section 4.19(b) of the Company Disclosure Letter; or
(xiiixiv) any contract relating Company IP Agreement that is material to material Company IPthe conduct of the Company's business.
(b) Section 4.19(b) of the Company Disclosure Letter sets forth a true and complete list as of the date hereof of all Material Contracts. The Company has made available to Parent correct and complete copies of all Material Contracts, including any amendments thereto.
(i) All of the Material Contracts are valid and binding on the Company or its Subsidiariesapplicable Subsidiary, enforceable against it in accordance with its terms, and are is in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the Company or nor any Subsidiary of its Subsidiaries nor, to the knowledge Knowledge of the Company, any third party is in violation of has materially violated any provision of, or materially failed to perform any obligation required under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the Company or nor any Subsidiary of its Subsidiaries nor, to the knowledge Knowledge of the Company, any third party, party is in breach, or has received written notice of any material breach, of any Material Contract, except as disclosed in Schedule 3.13.
Appears in 2 contracts
Sources: Merger Agreement (Emergent Group Inc/Ny), Merger Agreement (Universal Hospital Services Inc)
Material Contracts. (a) For purposes Except for Contracts listed in Section 4.12(a) of the Company Disclosure Letter or included as an exhibit to the Company's Form 10-K for the fiscal year ended December 31, 2014, as of the date of this Agreement, “Material neither the Company nor any of its Subsidiaries is a party to or bound by any Contract” shall mean :
(i) that is required to be filed as an exhibit to the following Company's Annual Report on Form 10-K pursuant to Item 601(b)(2), (4), (9) or (10) of Regulation S-K promulgated by the SEC;
(ii) pursuant to which or with respect to which the Company or any Subsidiary is a party of its Subsidiaries and any director, officer, or Affiliate of the Company or any of their assets are bound:
its Subsidiaries (i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act), whether or not filed by the Company with the Commission;
(ii) any employment or consulting contract (excluding in each case with respect to which the Company has continuing obligations as of the date hereofParent) with any current are parties or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000beneficiaries;
(iii) any contract providing for indemnification that obligates the Company or any guaranty by of its Subsidiaries to make non-contingent aggregate annual expenditures (other than principal and/or interest payments or the Company, deposit of other reserves with respect to debt obligations) in each case that excess of $1,000,000 and is not cancelable within 90 days without material penalty to the Company, other than Company or any contract providing for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course of businessits Subsidiaries;
(iv) that contains any contract non-compete or exclusivity provisions with respect to any line of business or geographic area that purports to limit in any material respect restricts the right business of the Company (x) to engage in or any line of businessits Subsidiaries, or (y) to compete with that otherwise restricts the lines of business conducted by the Company or any Person of its Subsidiaries or operate the geographic area in which the Company or any geographical locationof its Subsidiaries may conduct business;
(v) that (A) is an agreement to which any contract relating Governmental Authority is a party or under which any Governmental Authority has any rights or obligations or (B) is intended to the disposition or acquisition, directly or indirectly benefit any Governmental Authority (by merger including any subcontract or otherwise), by other Contract between the Company or any of its Subsidiaries and any contractor or subcontractor to any Governmental Authority);
(vi) which obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, trustees, employees or agents of the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries is the indemnitor;
(vii) which constitutes Indebtedness of the Company or any of its Subsidiaries with a principal amount outstanding as of the date hereof greater than $1,000,000;
(viii) that is an employment agreement with any executive officer of the Company or any of its Subsidiaries;
(ix) which requires the Company or any of its Subsidiaries to dispose of or acquire assets or properties (including any Company Vessel) with a fair market value in excess of $250,000;
(vi) 1,000,000, or involves any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product pending or service from a given third partycontemplated merger, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture consolidation or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payablesbusiness combination transaction;
(x) any employee collective bargaining agreement that constitutes an interest rate cap, interest rate collar, interest rate swap or other contract with any labor unionContract relating to a hedging transaction;
(xi) any other contract under which that sets forth the operational terms of a material joint venture, partnership, limited liability company or strategic alliance of the Company is obligated to make payment or incur costs in excess any of $250,000 in any year and which is not otherwise described in clauses (i)–(x) aboveits Subsidiaries;
(xii) that constitutes a loan to any contract Person (other than a wholly owned Subsidiary of the Company) by the Company or any of its Subsidiaries in an amount in excess of $1,000,000;
(xiii) relating to any material ship-sales, memoranda of agreement or other vessel acquisition Contract for Newbuildings and secondhand vessels currently contracted for by the Company or other material Contracts with respect to Newbuildings and the financing thereof, including performance guarantees, counter guarantees, refund guarantees, material supervision agreement, material plan verification services agreements, and future charters;
(xiv) pursuant to which a Company Vessel is not otherwise leased or chartered by the Company to a Third Party;
(xv) that is a management agreement, crewing agreement or financial lease (including sale/leaseback or similar arrangements) with respect to any Company Vessel involving annual payments in excess of $50,000, other than any such agreement or financial lease that is terminable by the Company or its Subsidiaries without fee or penalty upon 90 days' or less prior notice;
(xvi) that is a confidentiality or standstill agreement relating to any actual or potential Acquisition Proposal (other than the Confidentiality Agreement); or
(xvii) that, if breached or terminated, could reasonably be expected to have a Company Material Adverse Effect. Each Contract described in clauses (i)-(xii) through (xvii) above that to which the Company or any of its Subsidiaries is material a party or by which it is bound is referred to the Company; or
(xiii) any contract relating to material herein as a "Company IPMaterial Contract."
(b) (i) All of Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Contracts are valid Adverse Effect, each Company Material Contract is legal, valid, binding and binding enforceable on the Company or and each of its Subsidiaries, enforceable against it in accordance with its terms, and are in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the Company or any Subsidiary norSubsidiaries that is a party thereto and, to the knowledge of the Company, any third each other party thereto, and is in violation of any provision of, or failed to perform any obligation required under the provisions of, any Material Contractfull force and effect, except as disclosed may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors' rights generally and by general principles of equity (regardless of whether enforceability is considered in Schedule 3.13 a proceeding in equity or at Law). Except as, individually or in the aggregate, have not had and (iii) neither would not reasonably be expected to have a Company Material Adverse Effect, the Company or any Subsidiary norand each of its Subsidiaries has performed all obligations required to be performed by it prior to the date hereof under each Company Material Contract and, to the knowledge of the Company, each other party thereto has performed all obligations required to be performed by it under such Company Material Contract prior to the date hereof. Neither the Company nor any third party, is in breach, or of its Subsidiaries has received written any claim, notice of material breach, or other communication (whether oral or written) of any violation or default under any Company Material Contract, except as disclosed for violations or defaults that would not, individually or in Schedule 3.13the aggregate, reasonably be expected to have a Company Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Genco Shipping & Trading LTD), Merger Agreement (Baltic Trading LTD)
Material Contracts. (a) For purposes of this Agreement, “Material Contract” shall mean the following to which Neither the Company or nor any Subsidiary of its Subsidiaries is a party to or bound by any of their assets are bound:
contract, arrangement, lease, commitment or understanding (whether written or oral) (i) any that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act), whether SEC) to be performed after the date of this Agreement that has not been filed or not filed incorporated by reference in the Company with SEC Reports filed prior to the Commission;
date hereof, (ii) that contains (A) any employment non-competition or consulting contract (exclusive dealing agreement, or any other agreement or obligation which purports to limit or restrict in each case with any respect to which the Company has continuing obligations as of the date hereof) with any current or former (x) executive officer ability of the Company, (y) member the Surviving Corporation or any of their Subsidiaries or their businesses or, following consummation of the Board of DirectorsTransaction and the other transactions contemplated hereby, Parent or its Affiliates, to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or its Subsidiaries or, following consummation of the transactions contemplated by this Agreement, Parent or its Affiliates, is or would be conducted or (zB) any agreement that grants any right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company employee providing for an annual base salary in excess or any of $200,000;
its Subsidiaries or, following consummation of the Transaction, Parent or its Affiliates, to own or operate any assets or business, (iii) any contract containing a “most favored nation” clause or other similar term providing for indemnification preferential pricing or any guaranty by treatment to a party (other than the Company, in each case Company or its Subsidiaries) that is material to the Company, other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course of business;
(iv) any contract that purports to limit in any material respect the right of the Company (x) to engage in any line of business, or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IP.
(b) (i) All of the Material Contracts are valid and binding on the Company or its Subsidiaries, enforceable against it in accordance with (iv) between the Company or any of its termsSubsidiaries, on the one hand, and are any Affiliate, director or officer (or, to the Company’s Knowledge, any of their respective Affiliates), on the other hand, other than (A) contracts between the Company and any of its Subsidiaries, (B) contracts among Subsidiaries of the Company and (C) contracts with Parent or its Affiliates or (v) that, upon the execution, delivery or performance by the Company of this Agreement or the consummation of any of the transactions contemplated hereby, requires any consent or other action by any Person under, constitutes a default, or an event that, with or without notice or lapse of time or both, would constitute a default, under, or causes or permits the termination, cancellation, acceleration or other change of any right or obligation or the loss of any benefit to which the Company or any of its Subsidiaries is entitled and that is material to the business of the Company and its Subsidiaries, taken as a whole. Each contract, arrangement, commitment or understanding of the type described in this Section, whether or not set forth in the Company Disclosure Schedule, is referred to as a “Material Contract”.
(b) Except for breaches, violations or defaults which would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Material Contracts is valid and in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium effect and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the Company or nor any Subsidiary norof its Subsidiaries, nor to the knowledge of the Company’s Knowledge any other party to a Material Contract, any third party is in violation of has violated any provision of, or taken or failed to perform take any obligation required action which, with or without notice, lapse of time, or both, would constitute a default under the provisions ofof 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 as disclosed in Schedule 3.13 and (iii) neither the Company or any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or has received written notice of material breach, of any Material Contract, except as disclosed in Schedule 3.13.
Appears in 2 contracts
Sources: Transaction Agreement (Sovereign Bancorp Inc), Transaction Agreement (Banco Santander, S.A.)
Material Contracts. (ai) For purposes of Except for this Agreement, “Material Contract” shall mean the following to which Section 3.01(o) of the Company or any Subsidiary is Disclosure Letter sets forth a party or any true and complete list, as of their assets are boundthe date of the Original Agreement, and the Company has made available to Parent true and complete copies of:
(iA) any each contract, lease, license, note, bond or other agreement (each, a “Contract”) that would be required to be filed by the Company as a “material contract” (as such term is defined in pursuant to Item 601(b)(10) of Regulation S-K of under the Securities Act), whether or not filed by the Company with the Commission;
(iiB) each employment, consulting, severance, termination and indemnification Contract between the Company or any employment of its Subsidiaries and director or consulting contract officer of the Company or any such Subsidiary or other employee earning cash compensation in excess of $100,000 per year;
(in C) each case with respect Contract to which the Company has continuing obligations as or any of its Subsidiaries is a party that (I) materially restricts the ability of the date hereof) Company or any of its Subsidiaries to compete in any business or with any current person in any line of business or former (x) executive officer of the Companyto offer, (y) member of the Board of Directorssell, license, supply or distribute any service or product, or (zII) grants exclusive rights to any person, except for any such Contract that may be canceled, without material penalty or other liability to the Company employee providing for an annual base salary in excess or any of $200,000its Subsidiaries, upon notice of 90 days or less;
(iiiD) any contract providing for indemnification each Contract to which the Company or any guaranty of its Subsidiaries is a party that may call for aggregate payments by the CompanyCompany or any of its Subsidiaries of more than $500,000, in except for any such Contract that may be canceled, without material penalty or other liability to the Company or any of its Subsidiaries, upon notice of 90 days or less;
(E) each case Contract to which the Company or any of its Subsidiaries is a party that is material calls for aggregate payments to the Company or any of its Subsidiaries of more than $500,000, provided, that if a Contract does not specify an aggregate amount to be paid to the Company, other than any contract providing for indemnification of customers or other Persons then such Contract shall be disclosed pursuant to contracts entered into in this subparagraph (E) if aggregate payments to the ordinary course of business;Company pursuant to such Contract over the last 12 months shall have exceeded $500,000; and
(ivF) each loan and credit agreement, letter of credit, note, debenture, bond, indenture and other similar Contract pursuant to which any contract that purports to limit in any material respect the right indebtedness of the Company (x) to engage in or any line of business, or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lenderits Subsidiaries, in each case in excess of $250,000100,000, is outstanding or may be incurred, other than accounts receivables and payables;
(x) any employee collective bargaining agreement such Contract between or other contract with any labor union;
(xi) any other contract under which among the Company is obligated to make payment or incur costs in excess and any of $250,000 in any year and which is not otherwise its Subsidiaries. Each Contract of the type described in clauses clause (i)–(xA) above;
through (xii) any contract which is not otherwise described in clauses (i)-(xiF) above that is material referred to the Company; or
(xiii) any contract relating to material Company IPherein as a “Material Contract”.
(b) (iii) All of the Material Contracts are valid valid, binding and binding on the Company or its Subsidiaries, enforceable against it in accordance with its terms, and are in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedieseffect in all material respects. The Company is not, and to limitations of public policyhas not received any written notice or has any Knowledge that any other party is, (ii) neither the Company or in material default under any Subsidiary nor, to the knowledge of the Company, any third party is in violation of any provision of, or failed to perform any obligation required under the provisions of, any such Material Contract, except as disclosed in Schedule 3.13 and (iii) neither there has not occurred any event that, with the Company lapse of time or any Subsidiary northe giving of notice or both, to the knowledge of the Company, any third party, is in breach, or has received written notice of would constitute such a material breach, of any Material Contract, except as disclosed in Schedule 3.13default.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (BTP Acquisition Company, LLC), Agreement and Plan of Merger (Image Entertainment Inc)
Material Contracts. (a) For purposes of Except for this Agreement, “Material Contract” shall mean the following to which the Company or Benefit Plans, the Collective Bargaining Agreements and agreements filed as exhibits to the Company SEC Documents as of the date of this Agreement and neither the Company nor any Subsidiary of its Subsidiaries is a party to or any of their assets are boundbound by:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities ActSEC), whether or not filed by the Company with the Commission;
(ii) any employment Contract that (A) imposes any material restriction on the right or consulting contract ability of the Company or any of its Subsidiaries to compete with any other person or acquire or dispose of the securities of another person or (B) contains an exclusivity or “most favored nation” clause that restricts the business of the Company or any of its Subsidiaries in each a material manner;
(iii) any mortgage, note, debenture, indenture, security agreement, guaranty, pledge or other agreement or instrument evidencing indebtedness for borrowed money or any guarantee of such indebtedness of the Company or any of its Subsidiaries in an amount in excess of $5,000,000;
(iv) any Contract that provides for the acquisition, disposition, license, use, distribution or outsourcing of assets, services, rights or properties with a value, or requiring the payment of an annual amount by the Company and its Subsidiaries, in excess of $35,000,000;
(v) any material joint venture, partnership or limited liability company agreement or other similar Contract relating to the formation, creation, operation, management or control of any joint venture, partnership or limited liability company, other than any such Contract solely between the Company and its Subsidiaries or among the Company’s Subsidiaries;
(vi) any Contract expressly limiting or restricting the ability of the Company or any of its Subsidiaries to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the case may be;
(vii) any Contract that obligates the Company or any of its Subsidiaries to make any loans, advances or capital contributions to, or investments in, any person, other than (A) advances for expenses required under customary joint operating agreements and customary advances to operators of Oil and Gas Interests not covered by a joint operating agreement less than $25,000,000 or (B) any loan or capital contribution to, or investment in, (1) the Company or one of its wholly owned Subsidiaries, (2) any person (other than an officer, director or employee of the Company or any of its Subsidiaries) that is less than $500,000 to such person or (3) any officer, director or employee of the Company or any of its Subsidiaries that is less than $500,000 to such person;
(viii) any Contract providing for the sale by the Company or any of its Subsidiaries of Hydrocarbons that (A) excluding Contracts with market-based pricing mechanisms, has a remaining term of greater than 60 days and does not allow the Company or such Subsidiary to terminate it without penalty on 60 days’ notice or less or (B) contains a “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 without then or thereafter receiving full payment therefor;
(ix) any Contract relating to a currently producing property that provides for a call or option on production, or acreage dedication to a gathering, transportation or other arrangement downstream of the wellhead, covering in excess of 50 MMcf (or, in the case of liquids, in excess of 750 barrels) of Hydrocarbons per day (calculated on a yearly average basis);
(x) any Oil and Gas Lease that contains express provisions (A) obligating the Company or any of its Subsidiaries to drill ▇▇▇▇▇, pursuant to which the Company or any Subsidiary would reasonably be expected to be required to expend $1,000,000 on any individual Oil and Gas Lease or $5,000,000 in the aggregate on all obligations under Oil and Gas Leases, (B) establishing bonus obligations in excess of $1,500,000 that were not satisfied at the time of leasing or signing and that remain payable, (C) requiring payments or providing for a change in terms upon a change in control of the lessee or (D) providing for a fixed term, even if there is still production in paying quantities;
(xi) any agreement other than Oil and Gas Leases pursuant to which the Company or any of its Subsidiaries has paid amounts associated with any Production Burden in excess of $10,000,000 during the immediately preceding fiscal year or with respect to which the Company has continuing obligations as reasonably expects that it will make payments associated with any Production Burden in any of the date hereof) with any next three succeeding fiscal years that could, based on current or former (x) executive officer of the Companyprojections, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of exceed $200,000;
(iii) any contract providing for indemnification or any guaranty by the Company, in each case that is material to the Company, other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course of business;
(iv) any contract that purports to limit in any material respect the right of the Company (x) to engage in any line of business, or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above10,000,000 per year;
(xii) any contract agreement which is not otherwise described a joint development agreement, exploration agreement or acreage dedication agreement (excluding, in clauses respect of each of the foregoing, customary joint operating agreements) that either (i)-(xiA) above that is material to the Company; oroperation of the Company and its Subsidiaries, taken as a whole, or (B) would reasonably be expected to require the Company and its Subsidiaries to make expenditures in excess of $100,000,000 in the aggregate during the 12-month period following the date hereof;
(xiii) any contract relating acquisition Contract that contains “earn out” or other contingent payment obligations, or remaining indemnity or similar obligations, that could reasonably be expected to result in payments after the date hereof by the Company or any of its Subsidiaries in excess of $10,000,000; and
(xiv) any material lease or sublease with respect to a Company IPLeased Real Property.
(xv) All contracts of the types referred to in clauses (i) through (xv) above are referred to herein as “Company Material Contracts.”
(b) (i) All Except as has not had and would not have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contracts are Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in material breach of or default under the terms of any Company Material Contract. Each Company Material Contract is a valid and binding on obligation of the Company or its Subsidiariesthe Subsidiary of the Company that is party thereto and, enforceable against it in accordance with its termsto the knowledge of the Company, of each other party thereto, and are is in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the Company or any Subsidiary nor, to the knowledge of the Company, any third party is in violation of any provision of, or failed to perform any obligation required under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iii) neither the Company or any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or has received written notice of material breach, of any Material Contract, except as disclosed in Schedule 3.13Remedies Exceptions.
Appears in 2 contracts
Sources: Merger Agreement (McMoran Exploration Co /De/), Merger Agreement (Freeport McMoran Copper & Gold Inc)
Material Contracts. (a) For purposes Except (x) as set forth on Section 6.16(a) of the Caesars Disclosure Schedule and (y) solely with respect to subsections (i), (v) and (vi) of this AgreementSection 6.16(a), for any Contract to which CEOC or an Affiliate of Parent (other than any Company Party or its Subsidiaries) is party or by which CEOC or an Affiliate of Parent (other than any Company Party or its Subsidiaries) is bound which is binding upon any Company Party or its Subsidiaries in substantially the same manner as such Contract is binding upon other Subsidiaries of CEOC or Parent, (other than, in the case of any Contracts described in the foregoing clause (y), any Contracts which involve any payments directly by or to any Company Party or its Subsidiaries, including through an allocation to any Company Party or its Subsidiaries, in excess of the amounts set forth in subsections (i), (v) and (vi) of this Section 6.16(a)), none of the Company Parties or their respective Subsidiaries is a party to or bound by any of the following Contracts as of the date of this Agreement (each a “Material Contract” shall mean the following to which the Company or any Subsidiary is a party or any of their assets are bound:”):
(i) any “material contract” Contract that, by its terms, requires payments by any Company Party or its Subsidiaries in excess of $750,000 per annum or $1,500,000 in the aggregate for the stated term of such Contract or which may not be terminated by such Company Party or its Subsidiaries within twelve (as 12) months from the date of this Agreement without such term is defined Company Party or its Subsidiaries being obligated to pay any penalty, premium or additional payments in Item 601(b)(10) amounts greater than $750,000 in respect of Regulation S-K of the Securities Act), whether or not filed by the Company with the Commissionsuch Contract;
(ii) any employment Contract for Indebtedness of any Company Party or consulting contract its Subsidiaries or any Contract granting any Person a Lien (in each case with respect to which the Company has continuing obligations as other than a Permitted Lien) on all or any part of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000Purchased Interests;
(iii) (A) any contract providing for indemnification Contract pursuant to which CLC or any guaranty by Company Party or its Subsidiaries has agreed to any material restriction on the Companyright of CLC or any Company Party or its Subsidiaries to use or enforce any Purchased Intellectual Property or Other Material IP, other than with respect to commercially available software, or (B) any material Contract pursuant to which CLC or any Company Party or its Subsidiaries agrees to license, encumber, transfer or sell rights in each case that is material or with respect to the Companyany Purchased Intellectual Property, other than any contract providing for indemnification of customers or other Persons pursuant to contracts non-exclusive licenses entered into by CLC or any Company Party or its Subsidiaries in the ordinary course of business;
(iv) any contract that purports to limit in Contract containing any material respect covenant materially limiting the right ability of the any Company (x) Party or its Subsidiaries to engage in any line of business, business or (y) in any territory or to compete with any business or Person or operate that otherwise materially limits any Company Party or its Subsidiaries to conducting its business in any geographical locationthe manner it is currently conducted;
(v) any contract relating to the disposition joint venture, partnership or acquisitionsimilar Contract, directly which involves a sharing of revenues, profits, cash flows, expenses or indirectly (by merger or otherwise), by the Company of assets losses with a fair market value other Persons in excess of $250,000750,000 annually;
(vi) any contract Contract that contains any provision that requires the purchase involves royalties payable to another Person in excess of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company$750,000 annually;
(vii) any contract that obligates Contract pursuant to which any Company Party or its Subsidiaries has acquired a business or entity (or any equity interest therein), or assets of a business or entity, whether by way of merger, consolidation, purchase of stock, purchase of assets or exclusive license and pursuant to which the Company to conduct business on an exclusive or preferential basis with has any third party;continuing material obligations as of the date hereof; or
(viii) any partnership, joint venture other Contract or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is obligation not otherwise described listed in clauses (i)–(xi) above;
through (xiivii) any contract which is not otherwise described in clauses (i)-(xi) above that is otherwise material to the Company; or
(xiii) any contract relating to material Company IPParty or its Subsidiaries.
(b) (i) All of the Each Material Contracts are Contract is valid and binding on upon each of the Company Parties or its Subsidiariestheir respective Subsidiaries party thereto (and, enforceable against it to the Knowledge of the Caesars Parties, on all other parties thereto), in accordance with its terms, terms and are is in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the there is no breach or violation of or default by any Company Party or any Subsidiary norits Subsidiaries or, to the knowledge Knowledge of the CompanyCaesars Parties, by any other party under any material provision of the Material Contracts, whether or not such breach, violation or default has been waived, and (iii) no event has occurred with respect to any Company Party or its Subsidiaries or, to the Knowledge of the Caesars Parties, any third party is in other party, which, with notice or lapse of time or both, would constitute a breach, violation of any provision or default of, or failed give rise to perform a right of termination, modification, cancellation, foreclosure, imposition of a Lien, prepayment or acceleration under, any obligation required under material provision of the provisions Material Contracts. None of the Caesars Parties or any of their respective Affiliates has received any written notice (or, to the Knowledge of the Caesars Parties, any oral or other notice) of the intention of any Person to terminate, nor has there been any termination of, any Material Contract. The Caesars Parties have made available to Growth Partners a true, except as disclosed in Schedule 3.13 correct and (iii) neither the Company complete copy of all Material Contracts, together with all amendments, waivers or any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or has received written notice of material breach, of any Material Contract, except as disclosed in Schedule 3.13other changes thereto.
Appears in 2 contracts
Sources: Transaction Agreement (CAESARS ENTERTAINMENT Corp), Transaction Agreement (Caesars Acquisition Co)
Material Contracts. (a) For purposes Section 3.21(a) of this Agreementthe Company Letter contains a true, “Material Contract” shall mean complete and correct list of the following Contracts to which the Company or any Subsidiary of its Subsidiaries is a party or by which any property or asset of the Company or any of their assets are its Subsidiaries is bound:, in each case as of the date of this Agreement, other than Company Plans listed on Section 3.18(a) of the Company Letter (collectively, the “Material Contracts”):
(i) (A) each Contract that limits the freedom of the Company, any of its Subsidiaries or any of its Affiliates to compete or engage in any line of business or geographic region or with any Person, sell, supply or distribute any product or service or that otherwise has the effect of restricting in any material respect the Company, its Subsidiaries or Affiliates, taken as a whole, from the development, marketing or distribution of products and services, in each case, in any geographic area or (B) Contracts of the type described in clause (A) above, solely to the extent such Contracts limit the rights of Buyer and its Affiliates (other than the Company and its Subsidiaries) after the Acceptance Time;
(ii) each partnership, 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 Contract that is material to the Company and its Subsidiaries, taken as a whole;
(iii) each Contract entered into since January 1, 2014: (A) relating to the disposition or acquisition by the Company or any of its Subsidiaries of any business (whether by merger, amalgamation, consolidation or other business combination, sale of assets, sale of shares in the share capital or other voting securities, tender offer, exchange offer, or similar transaction), or (B) pursuant to which the Company or any of its Subsidiaries will acquire or is obligated to acquire any interest or make an investment (other than the Company or any of its Subsidiaries), in each case, other than such Contracts that are immaterial to the Company and its Subsidiaries, taken as a whole;
(iv) each Contract with respect to the acquisition or disposition of any Person (whether by merger, amalgamation, consolidation or other business combination, sale of assets, sale of shares in the share capital or other voting securities, tender offer, exchange offer, or similar transaction) pursuant to which the Company or any of its Subsidiaries has (A) material continuing indemnification obligations (other than in the ordinary course in connection with the development, sale or licensing of Company Products), or (B) any “earn-out” or similar contingent payment obligations, in each case, (x) other than any such obligations that are immaterial to the Company and its Subsidiaries, taken as a whole, or (y) other than any Contract that provides solely for the acquisition of inventory, raw materials or equipment in the ordinary course;
(v) any and all Contracts required to be listed on (x) Section 3.16(e) or (y) Section 3.16(f) of the Company Letter;
(vi) (A) each Contract that grants any right of first refusal or right of first offer in favor of a Third Party or that materially limits the ability of the Company, any of its Subsidiaries or any of its Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any material businesses or material assets or (B) Contracts of the type described in clause (A) above, solely to the extent such Contracts limit the rights of Buyer and its Affiliates (other than the Company and its Subsidiaries) after the Acceptance Time;
(vii) (A) each supply Contract that contains any exclusivity rights (other than customization work for customers relating to Company Products) or “most favored nations” provisions or minimum use, supply or display requirements that is binding on the Company or its Affiliates or (B) Contracts of the type described in clause (A) above, solely to the extent such Contracts limit the rights of Buyer and its Affiliates (other than the Company and its Subsidiaries) after the Acceptance Time;
(viii) other than instruments providing for indebtedness that would not, in the aggregate, exceed $50,000,000, each Contract that (A) is an indenture, credit agreement, loan agreement, security agreement, guarantee of, note, mortgage or other agreement providing for indebtedness (including obligations under any capitalized leases but excluding agreements between the Company and any wholly owned Subsidiary of the Company or between wholly owned Subsidiaries of the Company) or pursuant to which the Company or any of its Subsidiaries guarantees any such indebtedness of any other Person (other than the Company or another wholly owned Subsidiary of the Company), (B) materially restricts the Company’s and its Subsidiaries’ (taken as a whole) ability to incur indebtedness or guarantee the indebtedness of others, (C) grants a Lien (other than a Permitted Lien) or restricts the granting of Liens on any property or asset of the Company or its Subsidiaries that is material to the Company and its Subsidiaries, taken as a whole, or (D) is an interest rate derivative, currency derivative, forward purchasing, swap or other hedging contract;
(ix) each collective bargaining agreement and each Contract with any labor union, works council or similar organization;
(x) each Contract that provides for a settlement or conciliation (A) with any Governmental Authority that materially (x) restricts or imposes material obligations upon the Company or its Subsidiaries (taken as a whole) or (y) materially disrupts the business of the Company and its Subsidiaries (taken as a whole) as currently conducted, or (B) that would require the Company or any of its Subsidiaries to pay consideration of more than $10,000,000 after the date of this Agreement; and
(xi) each Contract not otherwise described in any other subsection of this Section 3.21(a) that would constitute a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act), whether or not filed by the Company with the Commission;
(iiSEC) any employment or consulting contract (in each case with respect to which the Company has continuing obligations as of the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000;
(iii) any contract providing for indemnification or any guaranty by the Company, in each case that is material to the Company, other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course of business;
(iv) any contract that purports to limit in any material respect the right of the Company (x) to engage in any line of business, or (y) to compete with any Person or operate in any geographical location;
(v) any contract relating to the disposition or acquisition, directly or indirectly (by merger or otherwise), by the Company of assets with a fair market value in excess of $250,000;
(vi) any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third party;
(viii) any partnership, joint venture or similar contract that is material to the Company;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts, in each case relating to indebtedness for borrowed money, whether as borrower or lender, in each case in excess of $250,000, other than accounts receivables and payables;
(x) any employee collective bargaining agreement or other contract with any labor union;
(xi) any other contract under which the Company is obligated to make payment or incur costs in excess of $250,000 in any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to the Company; or
(xiii) any contract relating to material Company IP.
(b) A true, correct and complete copy of each Material Contract in effect as of the date of this Agreement has been made available to Buyer or publicly filed with the SEC prior to the date of this Agreement. Except for matters that would not have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) All each Material Contract is a valid, binding and enforceable obligation of the Material Contracts are valid and binding on the Company or one of its Subsidiaries, enforceable against it in accordance with its termson the one hand, and are in full force and effect, subject to laws of general application relating to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither the Company or any Subsidiary norand, to the knowledge of the Company, any third of the other party or parties thereto, on the other hand, in accordance with its terms, subject to the Enforceability Exceptions, and each Material Contract is in violation of any provision offull force and effect, or failed to perform any obligation required under the provisions of, any Material Contract, except as disclosed in Schedule 3.13 and (iiiii) neither the Company or any Subsidiary norand each of its Subsidiaries has performed all obligations required to be performed by it under each Material Contract to date and, to the knowledge of the Company, each other party to each Material Contract has performed all obligations required to be performed by it under such Material Contract to date, (iii) none of the Company or any third party, is in breach, or of its Subsidiaries has received written notice of any, and, to the knowledge of the Company, none of the Company or any of its Subsidiaries is in, default or material breach, breach under (nor does there exist any condition which upon the passage of time or the giving of notice or both would cause such a default or material breach under) any Material Contract and (iv) neither the Company nor any of its Subsidiaries has received any written notice from any other party to any such Material Contract that such party intends to terminate, or not renew, any such Material Contract, except as disclosed in Schedule 3.13.
Appears in 2 contracts
Sources: Purchase Agreement (NXP Semiconductors N.V.), Purchase Agreement (Qualcomm Inc/De)
Material Contracts. (a) For purposes Section 3.22(a) of this Agreementthe Company Disclosure Schedule sets forth a true and complete list of each Contract (and any amendments, “Material Contract” shall mean the following supplements and modifications thereto), other than any Company Benefit Plan, to which the Company or any Subsidiary of the Company Subsidiaries is a party as of the date of this Agreement, or by which the Company, any of the Company Subsidiaries or any of their respective properties or assets are boundis bound as of the date of this Agreement (all Contracts described in clauses (i) through (x) of this Section 3.22(a), the “Material Contracts”), which:
(i) any is a “material contract” (as such term is defined in within the meaning of Item 601(b)(10) of Regulation S-K of the Securities Act), whether or not filed promulgated by the Company with the CommissionSEC;
(ii) any employment or consulting contract (in each case with respect is required to which be disclosed pursuant to Item 404 of Regulation S-K of the Company Exchange Act and has continuing obligations as of not been so disclosed prior to the date hereof) with any current or former (x) executive officer of the Company, (y) member of the Board of Directors, or (z) Company employee providing for an annual base salary in excess of $200,000;
(iii) to the extent material to the business of the Company and the Company Subsidiaries, taken as a whole, relates to the management of any contract providing Company Property or portion thereof which is not terminable on ninety (90) days’ notice or less without liability for indemnification any penalty or other payment;
(iv) contains covenants of the Company or any guaranty by of the CompanyCompany Subsidiaries not to compete or engage in any line of business or compete with any Person in any geographic area, in each case case, in a manner that is material to the Company, other than any contract providing for indemnification of customers or other Persons pursuant to contracts entered into in the ordinary course of business;
(iv) any contract that purports to limit in any material respect the right of Company and the Company (x) to engage in any line of businessSubsidiaries, or (y) to compete with any Person or operate in any geographical locationtaken as a whole;
(v) (A) provides for a partnership or joint venture or a material strategic alliance, collaboration, co-promotion, co-marketing or similar arrangement (including any contract relating tenancy-in-common arrangement or understanding) between the Company or any Company Subsidiary and a third party, or (B) to the disposition extent material to the business of the Company and the Company Subsidiaries, taken as a whole, involves a sharing of the Company’s, the Company Subsidiaries’ or acquisitionany other Person’s revenues, profits, losses, costs or liabilities with any other Person (other than the Company or any of the Company Subsidiaries);
(vi) provides for the pending purchase or sale, option to purchase or sell, right of first refusal, right of first offer or other right to purchase, sell, dispose of, or ground lease (by merger, by purchase or sale of assets or stock, by lease or otherwise), or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of, (A) any real property (including any Company Property or any portion thereof) or (B) any other material asset of the Company or any Company Subsidiary with a fair market value or purchase price greater than $20,000,000;
(vii) contains continuing material obligations of the Company or a Company Subsidiary involving the acquisition or disposition, directly or indirectly (by merger or otherwise), of real property, assets, capital stock or other equity interests, including any “earn-out” provisions or other contingent payment obligations that would reasonably be expected to result in any material payment obligation by the Company of assets with a fair market value in excess of $250,000;
(vi) or any contract that contains any provision that requires the purchase of all of the Company’s requirements for a given product or service from a given third party, which product or service is material to Company Subsidiaries after the Company;
(vii) any contract that obligates the Company to conduct business on an exclusive or preferential basis with any third partydate of this Agreement;
(viii) relates to any partnershipIndebtedness for borrowed money in excess of $1,000,000 (provided, joint venture that Section 3.22(a) of the Company Disclosure Schedule sets forth only (A) the principal Contract relating to any such Indebtedness or (B) in the case of a mortgage, the applicable Company Property encumbered by such mortgage, the outstanding principal amount of such mortgage as of November 4, 2021, and whether such mortgage is subject to any “lock-out” or similar contract that is material to the Companyprovision as of September 28, 2021);
(ix) provides for any mortgagesswap, indenturesforward, guaranteesfutures, loans or credit agreementswarrant, security agreements option or other contractsderivative or hedging transaction, in each case relating to indebtedness for borrowed moneyincluding any interest rate cap, whether as borrower interest rate collar, interest rate swap or lender, in each case in excess of $250,000, other than accounts receivables and payables;similar Contract or agreement; or
(x) any employee collective bargaining agreement provides for (A) annual aggregate payments or other contract with any labor union;
(xi) any other contract under which consideration to the Company is obligated to make payment or incur costs in excess any of the Company Subsidiaries of more than $250,000 in 1,000,000 or (B) annual aggregate payments or other consideration by the Company or any year and which is not otherwise described in clauses (i)–(x) above;
(xii) any contract which is not otherwise described in clauses (i)-(xi) above that is material to of the Company; or
(xiii) any contract relating to material Company IPSubsidiaries of more than $2,500,000.
(b) (i) All The Company has made available to Parent a true and complete copy of the each Material Contracts are Contract. Each Material Contract is a valid and binding on obligation of the Company or its Subsidiariesthe Company Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto, in full force and effect and enforceable against it in accordance with its terms, and are in full force and effect, except (i) as such enforceability is subject to laws of general application relating the Bankruptcy and Equity Exception, except as would not, individually or in the aggregate, reasonably be expected to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium have a Company Material Adverse Effect and similar laws relating to or affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies, and to limitations of public policy, (ii) neither for any such Material Contract that is in effect on the date hereof but will expire in accordance with its terms prior to the Closing Date. Neither the Company or nor any Subsidiary of the Company Subsidiaries nor, to the knowledge of the Company, any third other party is in breach of or in default under any Material Contract, and no event has occurred that, with the lapse of time or the giving of notice or both, would result in a material violation of any provision or material breach of, or failed give the Company, a Company Subsidiary or any other Person the right to perform declare a default or exercise any obligation required under remedy under, or to accelerate the provisions maturity of performance of, or to cancel or terminate or modify, any Material Contract, in each case except as disclosed would not, individually or in Schedule 3.13 and (iii) the aggregate, reasonably be expected to have a Company Material Adverse Effect. Since January 1, 2021 through the date of this Agreement, neither the Company or nor any Subsidiary nor, to the knowledge of the Company, any third party, is in breach, or Company Subsidiaries has received written notice of any actual or alleged material breach, breach of any Material Contract, except as disclosed in Schedule 3.13.
Appears in 2 contracts
Sources: Merger Agreement (Industrial Logistics Properties Trust), Merger Agreement (Monmouth Real Estate Investment Corp)